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REGULATION 
OF  COMMERCE 


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LIBRARY 

OF  THE 

University  of  Caufornia. 


Class 


STUDIES  IN  CONSTITUTIONAL  LAW 


A  Treatiae  on  American  Qtizenship. 

By  John  S.  Wise  of  the  New  York  Bar. 

Due  Prooes  of  Law  under  the  Federal  G>nstHution* 

By  Luaus  Polk  McGeheb,  Professor  of  Law  in  the  Uni- 
versity of  North  Carolina. 

Regtilatlon  of  Gxnmerce  tinder  the  Federal  G>nstitution» 

By  Thomas  H.  Calvert,  Annotator  of  the  Constitution  in 
•*  Federal  Statutes.  Annotated." 


OfArr   Volumts  in  Preparation, 


STUDIES  IN  CONSTITUTIONAL  LAW 


REGULATION  OF  COMMERCE 


UNDER  THE 


Federal  Constitution 


BY 

THOMAS  H.  CALVERT 

ANNOTATOK  OF  TH«  CONSTITUTION  IN  **  FEDERAL  STATUTES,  ANNOTATID* 


EDWARD  THOMPSON  COMPANY 

NORTHPORT,  LONG  ISLAND,  N.  Y. 
1907 


6BHEUL 


^^S 


Copyright  1907 

by 

Edward  Thompson  Company 


^//  rights  reserved 


PREFACE 


In  the  preparation  of  such  a -work  as  this  an 
author  is  under  the  temptation  unduly  to  dwell  on 
matters  of  contemporary  interest,  and  thus  to  lose 
the  sense  of  due  proportion.  In  taking  up  and 
prosecuting  the  work,  it  was  my  purpose  and  it 
has  heen  my  effort  to  make  a  clear,  coherent,  and 
comprehensive  presentation  of  the  subject,  strictly 
within  its  scope,  convenient  for  the  practicing  lawyer 
and  the  legislator,  while  useful  also  as  a  text-book 
for  the  student.  The  construction,  scope,  and  effect 
of  statutes  passed  in  exercise  of  the  power  of  Con- 
gress to  regulate  commerce  have  not  been  discussed 
unless  it  seemed  that  a  fundamental  question  was 
involved  in  the  particular  consideration. 

This  presentation  is  mainly  based  upon  a  care- 
ful examination  of  all  the  cases  on  the  subject 
decided  by  the  Supreme  Court  of  the  United  States. 
On  the  moot  question  of  the  existence  and  nature  of 
a  federal  police  power  I  have  endeavored  to  find 
and  state  a  general  principle.  The  working  out  of 
the  principle  has  relation  chiefly  to  the  question  of 
the  power  to  regulate  commerce  as  including  the 
power  to  prohibit,  and  the  relation  of  this  power  to 
a  consideration  of  the  power  of  Congress  indirectly 
to  regulate  manufacture  by  denying  the  facilities  of 
interstate  transportation  to  commodities  not  manu- 
factured under  conditions  prescribed  by  Congress. 
In  separate  parts  of  the  work  these  two  topics  are 

[iiij 


166329 


PREFACE 

treated,  and  the  principle  suggested  can  perhaps  be 
understood  only  by  referring  to  both  parts. 

No  other  department  of  constitutional  law  fur- 
nishes such  an  opportunity  to  acquire  a  knowledge 
of  the  respective  powers  of  the  federal  and  State 
governments  as  does  a  study  of  this  subject.  The 
enlightenment  acquired  reveals  the  existence  of  an 
exclusive  authority  of  the  States  as  to  all  matters 
concerning  their  domestic  commerce,  and  a  power 
in  the  States  concurrent  with,  but  subordinate  to, 
that  of  Congress  respecting  many  matters  affect- 
ing the  instrumentalities  of  interstate  and  foreign 
commerce. 

We  hear  much  said  about  enlarging  the  powers 
of  the  federal  government  by  judicial  construction. 
Whatever  else  the  suggestion  may  allude  to,  it 
cannot  refer  to  the  power  of  Congress  to  regulate 
the  instrunientalities  of  interstate  commerce.  It  is 
impossible  to  give  any  attention  to  the  subject  with- 
out being  impressed  with  the  wide  powers  possessed 
by  the  States  over  the  instrumentalities  of  com- 
merce, even  in  matters  having  relation  to  and  affect- 
ing their  interstate  and  foreign  business.  The 
question  of  the  expediency  of  the  adoption,  whether 
by  the  national  government  or  by  the  States,  of 
regulations  which  may  be  said  to  be  within  the  con- 
current powers  of  the  federal  and  State  govern- 
ments, but  inoperative  as  to  the  State  enactment 
when  Congress  has  legislated  on  the  particular  sub- 
ject, must  in  many  instances  be  determined  by  the 
sufficiency  of  the  action  of  the  States  to  meet  the 
local  requirements.  The  failure  of  the  States  to 
adopt  regulations  to  meet  a  supposed  need,  either 
by  indifference  to  the  wrong  or  delinquency  or  by 
such  an  exercise  of  the  power  that,  on  account  of 

[iv] 


PBEFACB 

the  absolute  requirements  imposed,  a  regnlation 
cannot  pass  the  supreme  test  of  reasonableness, 
results  in  agitation  for  federal  regulation  of  matters 
concerning  which  the  power  of  Congress  is  im- 
doubted.  There  would  be  no  need  to  invoke  the 
exercise  of  the  federal  power  in  such  cases  if 
States  adopted  reasonable  regulations  to  satisfy 
local  requirements  or  opinion. 

This  topic  may  be  illustrated  by  comparing  the 
attempt  of  the  State  of  Texas  to  meet  the  car 
shortage  problem,  and  the  laws  of  several  of  the 
States  prohibiting  the  running  of  freight  trains  on 
Sunday.  In  the  case  respecting  the  Texas  statute, 
the  court  seemed  careful  to  avoid  saying  that  the 
subject-matter  of  the  statute  is  not  a  proper  matter 
for  the  exercise  of  the  State  police  power.  Indeed,, 
it  was  strongly  intimated  that  such  a  regulation  ia 
within  the  same  class  of  subjects  as  those  regarding 
the  speed  of  trains,  the  length  and  frequency  of 
stops,  the  heating,  lighting,  and  ventilation  of  pas- 
senger cars,  and  the  furnishing  of  food  and  water 
to  cattle  and  live  stock.  It  was,  however,  the  failure 
of  the  statute  to  make  allowance  for  contingencies 
which  good  management  and  a  desire  to  fulfil  all 
legal  requirements  cannot  provide  for,  that  con- 
strained  the  court  to  declare  the  statute  to  be 
unreasonable  and  invalid.  If  the  State  laws  pro- 
hibiting the  transportation  of  freight  on  Sundays 
required  that  freight  trains  should  stop  at  twelve 
o'clock  on  Saturday  night,  it  cannot  be  supposed  that 
they  would  be  sustained  as  to  trains  carrying 
interstate  and  foreign  freight.  But  by  permitting 
trains  running  on  Saturday  night  to  run  through  to 
destination  or  to  reach,  before  eight  or  nine  o'clock 
on  Sunday  morning,   a  convenient  place  to  wait 


PBEPACE 

over,  every  requirement  of  reasonableness  was 
met.  Many  such  illustrations  may  be  found  by  the 
investigator. 

The  Federal  Employers'  Liability  Act  of  June 
11,  1906,  has  recently  been  the  subject  of  judicial 
condemnation.^  The  statute  in  part  and  in  effect 
declares  the  liability  of  every  common  carrier 
engaged  in  commerce  between  the  several  States 
for  injuries  to  any  of  its  employees,  abrogates  the 
assumption  of  risk  and  fellow-servant  doctrines,  and 
imposes  the  doctrine  of  comparative  negligence. 

The  first  point  considered  by  the  court  was 
whether  regulating  the  relation  of  master  and  ser- 
vant can  be  regarded  as  a  subject  of  commerce  or 
as  a  rule  for  carrying  it  on.  Though  the  court 
answered  the  point  in  the  negative,  we  have  the 
impression  that  it  has  never  been  questioned  until 
this  case  that  the  power  of  Congress  over  the  instru- 
mentalities of  commerce  covers  every  relation  and 
necessarily  includes  the  declaration  of  the  rules  of 
liability  of  interstate  carriers  to  their  employees, 
and  especially  when  such  rules  are  obviously 
adopted  for  the  purpose  of  impressing  upon  the 
carriers  the  duty  of  exercising  every  precaution  for 
the  safety  of  their  employees. 

The  second  point  of  objection  is  one  which 
suggests  greater  doubt  and  difficulty.  It  is  that 
by  reason  of  the  terms  of  the  statute  — not,  so 
the  court  thought,  restricted  to  interstate  carriers 
and  their  employees  engaged  strictly  in  interstate 
transportation  —  it  is  applicable  to  domestic  as  well 
as  to  interstate  commerce,  and,  inasmuch  as  it  can- 

*  In  the  CMe  of  Brooks  v.  Southern  Pac.  R.  Co.,  decided  by  Hoa 
Walter  Evana,  District  Judge,  holding  the  United  States  Circuit 
Otmrt  for  the  Western  District  of  Kentucky. 


PREPAOB 


not  be  limited  by  construction,  is  invalid.  The  cases 
cited  by  the  court  to  support  this  contention  had 
relation  either  to  matters  connected  with  the  execu- 
tive department,  or  to  declaring  certain  acts  as 
crimes.  In  the  one  class  of  cases  it  may  be  said 
that  whenever  Congress  imposes  duties  upon  admin- 
istrative or  executive  officers  the  instructions  must 
be  specific  and  not  leave  the  statute  open  to  con- 
struction. Especially  when  the  constitutional  rights 
of  persons  may  be  involved,  the  leaving  of  questions 
of  construction,  requiring  a  limitation  of  the  exer- 
cise of  the  powers  under  the  statute  within  con- 
stitutional bounds,  to  such  officers  would  be  impos- 
ing upon  them  judicial  duties.  In  the  other  class 
of  cases  the  rule  requiring  the  strict  construction 
of  criminal  statutes  prevents  the  courts  from  giving 
to  a  statute,  general  and  not  separable  in  its  terms, 
a  narrower  meaning  than  it  is  manifestly  intended 
to  bear,  in  order  that  crimes  may  be  punished  which 
are  not  described  in  language  that  brings  them 
within  the  constitutional  power  of  Congress. 

This  statute,  however,  simply  declares  a  rule  of 
civil  liability  which  can  be  invoked  only  in  a  pending 
action  and  applied  by  a  court  of  law  in  a  proper 
case.  In  an  action  for  damages  for  personal  in- 
juries sustained  by  the  employee  of  a  common  car- 
rier, pending  in  a  federal  court,  the  court,  in  the 
absence  of  a  federal  rule  of  liability,  would  be  imder 
the  necessity  of  searching  the  whole  realm  of  the 
common  law  for  a  rule  of  decision,  as  modified 
probably  by  a  statute  of  the  State  within  which  the 
court  might  be  sitting.  It  can  then  surely  be  no 
strain  on  judicial  conscience  or  duty  to  apply  in 
proper  cases  the  rules  of  liability  declared  by  a 
federal  statute,  though  the  statute  be  open  to  possi- 

[vii] 


PREFACl 

ble  verbal  criticism.  It  may  be  further  safely  said 
that  if  Congress  were  to  declare  any  rule  of  liability, 
or  by  a  statute  general  in  terms  were  to  modify  or 
abrogate  any  common-law  rule,  it  would  be  the  duty 
of  the  courts  to  apply  the  rule  in  all  proper  cases 
arising  under  the  Constitution,  laws,  or  treaties  of 
the  United  States,  and  in  all  cases  arising  out  of 
transactions  of  which  the  national  government  has 
legislative  jurisdiction.  However  this  may  be,  the 
Supreme  Court  of  the  United  States  will  doubtless 
be  given  an  opportunity,  at  an  early  date,  to  pass 
upon  the  validity  of  this  particular  statute. 

T.  H.  C. 

NOBTHPOBT,  N.  T., 

February,  1907. 

[TiUJ 


TABLE  OF  CONTENTS 


PART   I. 

THE  CONSTITUTIONAL  PROVISIONS  AND 
THE  GENERAL  POWER  OF  CONGRESS 
AND  THE  STATES. 

CHAPTER  I. 

THE  CONSTITUTIONAL  PROVISIONS  GENERALLY. 

PAM 

Reasons  for  the  Adoption  of  the  Constitution 3 

The  Clauses  Generally 6 

Comjaierce  with  the  Indian  Tribes 7 

District  of  Columbia  and  the  Territories !• 

Application  of  Common  Law  and  State  Statutory  Rules If 

Judicial  Definitions  of  the  Term  Commerce IS 

Relative  Authority  of  Congress  and  the  Courts  to  Define  Uie 

Grants  of  Power 23 

Power  of  Congress  to  Define  a  Case  in  Equity 2t 

Power  of  Congress  to  Define  the  Admiralty  Jurisdictiom 31 

Ptwer  of  Congress  to  Define  the  Term  Commerce 3f 

CHAPTER  n. 

THE  GENERAL  POWER  OF  CONGRESS. 

The  P«wer  of  Congress  over  Interstate  and  Foreign  Commerce 

Generally    40 

Subject  to  Constitutional  Limitations 44 

Taxation  on  Exports  from  a  State 45 

Preference  to  Ports  of  One  State 45 

May  Adopt  any  Appropriate  Means 4i 

What  Constitutes  the  Power  to  Regulate 48 

The  P©wer  to  Pyohibit  as  an  Exertion  of  a  Police  Power 51 


TABLE   OF   CONTENTS 


PAOB 

Exclusiveness  of  the  Power  of  Congress 55 

The  National  Power  of  Eminent  Domain .„;.,. ... . ...  „  59 

Duty  to  Make  Just  Compensation 62 

What  Property  May  Be  Taken 63 

What  Constitutes  the  Taking  of  Property 64 

Mode  of  Adjudging  and  Making,  and  Measure  of,  Compensa- 

tion  3 ,  68 


CHAPTEK  III. 

THE  GENERAL  POWER  OF  THE  STATES. 

The  Power  of  the  States  over  Domestic  Commerce 75 

Local  Regulations  of  Interstate  Commerce 76 

Construction  of  State  Statutes 77 

The  State  Police  Power 79 

The  Public  Health 83 

Peace,  Good  Order,  and  Public  Morals 84 

The  Public  Safety 85 

The  Public  Convenience 86 

Invading  Exclusive  Power  of  Congress 87 

Incidental  Effect  of  Invading  Exclusive  Power  of  Congress. ...  91 

Reasonableness  of  Its  Exercise  as  the  Supreme  Test 94 

Inspection  Laws 97 

Quarantine  and  Health  Laws 101 

Inspection  and  Quarantine  Charges  and  Fees 106 


FART  II. 

SUBJECTS  OF  REGULATIONS 
CHAPTEK  IV. 

MANUFACTURE  AND  PRODUCTION ......  Ill 

CHAPTER  V. 

SALE,  PURCHASE,  AND  EXCHANGE  OB!  OOMMODITIBS. 

Power  of  Congress  in  General 118 

Ptower  of  the  States  in  Genera) 120 

.What  Comtitutea  an  Original  Package w*.^.  .m.  ...^ 121 


tabijB  of  contents 


PAOB 

Trademarks 127 

Status  of  C.  O.  D.  Shipments 12« 

Intoxicating  Liquora 131 

Cigarettes    134 

Oleomargarine   13S 

Coffee   1^ 

Stockyards    .....141 

Making  Importations  Subject  to  State  Laws — Wilson  Act....  143 


CHAPTER  VL 

TRANSPORTATION  OF  PERSONS  AND  PROPERTIf 
GENERALLY. 

Interstate  and  Foreign  Transportation 148 

Tiransportation  Between  Places  in  the  Same  State  Passing  Oiit> 

tide  the  State 141 

Duration  of  Federal  Protection  from  OperaitiMi  ol  State  ha,m. .  161 


CHAPTER  VII. 

RAILROAD  AND  EXPRESS  COMPANIES. 

General  Power  of  Congttss  over  ^Interstate  Carriers 158 

General  Power  of  the  States  over  Carriers 159 

Prohibiting  Consolidation  of  Competing  Roads 1^ 

Regulating  Conliecting  Carriers 161 

Regulating  the  Operation  of  Trains l^S 

Requiring  Trains  to  Stop  at  Certain  Stations 1B5 

Accommodations  for  Different  Races 1B7 

Sunday  Laws  171 

Regulating  the  Sale  of  Tickets 171 

Regulating  the  Time,  Pla6e,  and  Manner  of  Delivery 172 

Delivery  of  Goods  on  Tender  of  Freight  Charges 178 

General  Power  of  Congress  to  Regulate  Transportation  Rates..    174 

Preference  to  Ports  of  One  State  over  Those  of  Another 176 

Power  of  States  to  Regulate  Transportation  Rates 179 

Regulating  Domestic  Part  of  Interstate  Rate 180 

Joint  Through  Rates 184 

Rates  on  Long  and  Short  Hauls 186 

Requiring  Rates  to  be  Fixed  Annually  and  Posted 186 


XU  TABLE   OF    CONTENTS 

CHAPTER  VIII. 

TILBGHAPH  AND  TELEPHONE  COMPANIES. 

V  PAOB 

Controlling  Power  of  Congress 18S 

Power  of  States  to  Adopt  Regulfttions lOi 

Regulating  Transmission  and  Delirerj  of  Messages 112 

CHAPTER  IX. 

NAVIGATION  AND  NAVIGABLE  WATERS. 

What  Are  Navigable  Waters 104 

Power  of  Congress  over  Navigable  Waters  Generally 195 

Power  of  States  over  Navigable  Waters  Grenerally 197 

Servitude  of  Shore  and  Submerged  Soil 201 

Levy  of  Tolls  for  River  Improvements 202 

Harbor  Regulations   203 

Wharves,  Piers,  and  Docks 205 

Ferries    207 

Pilots  and  Pilotage 209 

Canals  212 

CHAPTER  X. 
SHIPS  AND  SHIPPING. 

General  Powers  of  Congress  and  the  States 214 

Inspection  and  Licensing 21S 

Recording  Acts 217 

Regulating  Commerce  and  Admiralty  Jurisdiction 219 

BcgalatioBS  Affecting  Seamen 222 

CHAPTER  XI. 
BRIDGIB  tU 

CHAPTER  XII. 

SUNDRY  SUBJECTS  OF  REGULATION. 

Warehouses  and  Elevators 232 

Game  and  Fish  Laws 233 

Admission  and  Exclusion  of  Aliens 238 


TABLE   OF   CONTENTS  Till 

PAQI 
ExclusioB  hj  ike  6tates  of  Criminals,  and  Poor  and  Diseased 

Persons   » 241 

Lotteries ^.;. . . ^. -..,.. , . .  24g 

Insurance   24S 

State  Regulation  of  Foreign  Corporations 248 


CHAPTER  XIII. 
DISCRIMINATIVB  STATE  STATUTES tn 


PART  III. 

STATE  TAXATION  AS  AFFECTING. 
COMMERCE. 

CHAPTER  XIV. 

TAXATION  OF  IMPORTS  AND  EXPORTS 


CHAPTER  XV. 
DUTIES  OF  TONNAGE 260 

CHAPTER  XVI. 

TAXATION  OF  PROPERTY. 

General  Power  of  a  State  to  Tax  Property  Within  Its  Limits. . .  «76 

Application  of  the  Unit  Rule 282 

Taxation  of  Gross  Receipts 287 

Taxation  of  Goods 201 

CHAPTER  XVII. 

PRIVILEGE  AND  OCCUPATION  TAXEa 

On  the  Business  of  Engaging  in  Transportation 294 

On  Telegraph  and  Telephone  Companies 300 

On  Drummers  and  Canvaseers 304 


XXV  TAMJ]  OF   CONTENia 

FAQl 

On  Mevohiuits,  Peddlers,  mnd  Aucti<»iieeni«.*.-WMMi« •«»»«»,««•..  305 
Oa  Foreign  Corporations ^•.•.•m«*«.««*^i«^«..  30f 

Sliiidrj  Occupations  as  Subject  to  Taxation.. ••^.^. ••»«•«»<.••.•.  31t 


CHAPTEK  XVni. 

TAXATION  OF  CORPORATE  FRANGHlSB8.«i««ift«»e*i«i«^.<iu«j  312 
CHAPTER  XIX. 

DISCRIMINATION  BY  TAXATION. 

Diseriminating  Against  Products  of  Other  States  Generallj 31S 

Different  Modes  of  Collecting  Tax ^..•.•. 323 

Absence  of  Discrimination.... .••.•x»».«»«:«:«»^.^>* »»;...•. .«.«•.  323 


PART  I. 

THE  CONSTITUTIONAL  PROVISIONS  AND 
THE  GENERAL  POWER  OF  CONGRESS 
AND  THE  STATES. 


^  OFTHE    *^ 

l^NIVERSITY 

^         OF 


REGULATION  OF  COMMEECE. 


CHAPTER  I. 
THE   CONSTITUTIONAL  PKOVISIONS   GENEKALLY. 

REASONS  FOR  THE  ADOPTION  OF  THE  CONSTITUTION. 


M 


UCH  has  been  said  and  written  as  to  the    Chapter 
causes  which  brought  about  the  adoption  , 

of  the  United  States  Constitution,  which,  Need  for 

'  '     uniform 

after  ratification  by  the  requisite  number  of  States,  %^^iating 
went  into  effect  on  the  first  Wednesday  in  March,  <=°°^'°«'-<=<^- 
1789.  It  is  not  within  the  scope  of  this  work  to 
inquire  into  the  many  causes  of  weakness  which  con- 
tributed to  the  downfall  of  the  first-formed  govern- 
ment of  *^  The  United  States  of  America/'  For  our 
purpose  it  will  be  sufficient  to  show  that  one  of  the 
chief  causes  of  its  adoption  was  the  need  for  a  uni- 
form system  of  regulating  commerce  among  the  sev- 
eral States  themselves,  and  with  foreign  countries, 
which  the  impotence  of  the  federal  government  and 
the  jealousies  and  selfishness  of  the  respective 
States  rendered  impossible  under  the  Confederation. 
It  is  necessary  to  keep  this  in  mind,  for  one  of  the 
elementary  and  fundamental  canons  of  constitu- 
tional construction  requires  a  grant  of  power  or  a 
prohibition  to  be  interpreted  in  view  of  the  mischiefs 
it  was  intended  to  remedy. 


REGULATION    OF    COMMERCE 


Chapter  The  ^*  Articles  of  Confederation  and  Perpetual 

'        Union  "  established  a  system  which  was  nothing 

Nofederai    morc  than  a  federation  of  sovereign  and  independ- 

undSYh?     ^^^  States.      The  Congress  of  the  federation  was 

confcdera-    ^thout  powcr  to  tax,  but  was  dependent  wholly 

upon  contributions  by  the  States,  made  in  response 

to  requisitions  of  Congress.     The  government  had 

no  adequate  control  of  commerce.     Congress  had  no 

power  to  raise  revenue  by  way  of  duties  on  imports, 

and  the  seaboard  States  not  only  would  not  consent 

to   the  exercise   of  this  power  by   Congress,   but 

burdened  the  commerce  of  other  States  by  levying 

duties  on  imported  goods  which  were  designed  for 

States  having  no  ports,^  and  by  imposing  duties  of 

tonnage.2 

In  a  concurring  opinion  in  an  early  case,  Mr. 
Justice  Johnson  said:  **  For  a  century  the  States 
had  submitted,  with  murmurs,  to  the  commercial  re- 
strictions imposed  by  the  parent  State;  and  now, 
finding  themselves  in  the  unlimited  possession  of 
those  powers  over  their  own  commerce,  which  they 
had  so  long  been  deprived  of,  and  so  earnestly 
coveted,  that  selfish  principle  which,  well  controlled, 
is  so  salutary,  and  which,  unrestricted,  is  so  unjust 
and  tyrannical,  guided  by  inexperience  and  jealousy, 
began  to  show  itself  in  iniquitous  laws  and  impolitic 
measures,  from  which  grew  up  a  conflict  of  com- 
mercial regulations,  destructive  to  the  harmony  of 
the  States,  and  fatal  to  their  commercial  interests 
abroad.''^  And  in  a  later  case.  Chief  Justice 
Marshall  observed:  **  The  oppressed  and  degraded 
state  of  commerce  previous  to  the  adoption  of  the 

1  Woodruflf  V.  Parham,  (1868)  8  Wall.  (U.  S.)   123. 

2  See  Cook  v.  Pennsylvania,  (1878)  97  U.  S.  56C,  and  State  Ton- 
nage Tax  Cases,  (1870)  12  Wall.  (U.  S.)  204. 

3  Gibbons  V.  Ogden,  (1824)  9  Wheat.  (U.  S.)  1. 


BEGULATION   OP   COMMERCE 


Constitution  can  scarcely  be  forgotten.  It  was  regu-  Chapter 
J  a  ted  by  foreign  nations  with  a  single  view  to  their  ' 
own  interests ;  and  our  disunited  efforts  to  counteract 
their  restrictions  were  rendered  impotent  by  want 
of  combination.  Congress,  indeed,  possessed  the 
power  of  making  treaties;  but  the  inability  of  the 
federal  government  to  enforce  them  had  become  so 
apparent  as  to  render  that  power  in  a  great  degree 
useless.  Those  who  felt  the  injury  arising  from 
this  state  of  things,  and  those  who  were  capable  of 
estimating  the  influence  of  commerce  on  the  pros- 
perity of  nations,  perceived  the  necessity  of  giving 
the  control  over  this  important  subject  to  a  single 
government.  It  may  be  doubted  whether  any  of 
the  evils  proceeding  from  the  feebleness  of  the  fed- 
eral government  contributed  more  to  that  great  revo- 
lution which  introduced  the  present  system  than  the 
deep  and  general  conviction  that  commerce  ought  to 
be  regulated  by  Congress. ' '  ^ 

THE  CLAUSES  GENERALLY. 


enumer- 


It  was  to  meet  this  condition  that  the  Constitu-  The  clauses 
tion  was  proposed  by  the  Constitutional  Convention  ated. 
and  ratified  by  the  States,  and  to  remedy  the  faults 
suggested,  that  the  following  clauses,  having  a  direct 
or  incidental  reference  to  commerce,  were  adopted : 

Article  I,  Section  8.     The  Congress  shall  have 
power     ...     to    regulate   commerce   with 

4BroAvn  v.  Maryland,   (1827)   12  Wheat.   (U.  S.)   419. 

"The  conflict  between  the  commercial  regulations  of  the  several 
States  was  destructive  to  their  harmony  and  fatal  to  their  com- 
mercial interests  abroad,  and  this  was  the  mischief  intended  to  be 
obviated  by  the  grant  to  the  Congress  of  the  power  to  regulate 
commerce  with  foreign  nations  and  among  the  States."  Per  Chief 
Justice  Fuller,  in  Lehigh  Valley  R.  Co.  v.  Pennsylvania,  (1892) 
145  U.  S.  192. 


REGULATION    OF    COMMERCE 


ChMter  foreign  nations,  and  among  the  several  States, 

'  and  with  the  Indian  tribes. 

Article  I,  Section  9.  The  migration  or  importa- 
tion of  such  persons  as  any  of  the  States  now 
existing  shall  think  proper  to  admit,  shall  not 
be  prohibited  by  the  Congress  prior  to  the 
year  one  thousand  eight  hundred  and  eight, 
but  a  tax  or  duty  may  be  imposed  on  such 
importation,  not  exceeding  ten  dollars  for 
each  person.^ 

Article  I,  Section  9.  No  tax  or  duty  shall  be  laid 
on  articles  exported  from  any  State. 

Article  I,  Section  9.  No  preference  shall  be 
given  by  any  regulation  of  commerce  or  reve- 
nue to  the  ports  of  one  State  over  those  of 
another;  nor  shall  vessels  bound  to,  or  from, 
one  State,  be  obliged  to  enter,  clear,  or  pay 
duties  in  another. 

Article  I,  Section  10.  No  State  shall,  without 
the  consent  of  the  Congress,  lay  any  imposts 
or  duties  on  imports  or  exports,  except  what 
may  be  absolutely  necessary  for  executing  its 
inspection  laws:  and  the  net  produce  of  all 
duties  and  imposts,  laid  by  any  State  on  im- 
ports or  exports,  shall  be  for  the  use  of  the 
Treasury  of  the  United  States;  and  all  such 
laws  shall  be  subject  to  the  revision  and  con- 
trol of  the  Congress. 

Article  I,  Section  10.  No  State  shall,  without  the 
consent  of  Congress,  lay  any  duty  of  tonnage. 

The  first  clause  above  given  is  the  general  grant 
of  power  to  Congress  to  regulate  foreign  and  inter- 

BSce  People  v.  Compcagnie  G^n^rale  Transatlantique,   (1882)    107 
U.  S.  59,  referred  to  infra,  p.  267. 


REGULATION   OF   COMMERCE  2 

state  commerce  and  intercourse  with  the  Indian    ChMtar 
tribes.      Article  I,  section  9,  of  the   Constitution         ' 
consists  of  prohibitions  or  limitations  on  the  exer-  Thegener* 
cise  of  the  powers  granted  to  the  national  govern-  p°^S/°* 
ment,  and  the  clauses  quoted  from  that  section  may  ^i^'^a^^*"^ 
be  considered  as  limitations  on  the  power  given  to 
Congress  to  regulate  commerce,  though  the  one  pro- 
hibiting the  laying  of  any  tax  or  duty  on  articles 
exported  from  any  State  should  perhaps  be  con- 
sidered rather  as  a  limitation  on  the  federal  taxing 
power  than  on  the  power  to  regulate  commerce. 
Article  I,   section  10,  contains  limitations  on  the 
powers  of  the  States,  and  the  two  clauses  set  out  are 
in  the  nature  of  express  prohibitions  in  addition  to  or 
emphasizing  such  limitations  as  are  implied  by  the 
grant  of  power  to  Congress  to  regulate  commerce 
*^  with   foreign   nations,    and    among   the    several 
States,  and  with  the  Indian  tribes. ' ' 

WITH    THE    INDIAN    TRIBES. 

The  relation  between  the  national  government  originaiir 
and  the  Indians  is  fast  becoming  a  matter  of  mere  separate* 
historic  interest.  In  a  recent  case,^  Mr.  Justice 
Brewer  reviews  the  course  of  this  relation,  and  the 
dealings  of  the  government  with  the  Indian  tribes, 
from  early  times.  He  therein  shows  that  the  Indian 
tribes  were  treated  as  possessing  some  of  the  attri- 
butes of  nations  with  which  the  government  made 
treaties.  The  policy  of  the  government  was  to  put 
a  stop  to  the  wanderings  of  these  tribes  and  locate 
them  on  some  definite  territory  or  reservation,  and 
there  to  establish  for  them  a  communal  or  tribal 
life.     This  policy  was  effected  sometimes  by  treaty 

6  Matter  of  Heff,   (1905)    197  U.  S.  488. 


nations.. 


8 


REGULATION   OF   COMMERCE 


Chapter 


Subjected 
to  direct 
federal 
legislation. 


Emancipa- 
tion from 
federal  con- 
trol. 


Effect  of 

abandon- 
ment  of 
tribal 
relations. 


and  sometimes  by  force.  The  practice  of  dealing 
with  the  Indian  tribes  as  separate  nations  was 
changed  in  1871  by  a  proviso  inserted  in  an  Indian 
appropriation  act,  which  reads :  *  ^  No  Indian  nation 
or  tribe  within  the  territory  of  the  United  States 
shall  be  acknowledged  or  recognized  as  an  independ- 
ent nation,  tribe,  or  power  with  whom  the  United 
States  may  contract  by  treaty.''  "^  From  that  time 
the  Indian  tribes  and  the  individual  members 
thereof  have  been  subjected  to  the  direct  legislation 
of  Congress,  and  have  been  treated,  in  the  fullest 
sense,  as  wards  of  the  nation. 

Of  late  years,  however,  said  Mr.  Justice  Brewer, 
*^  a  new  policy  has  found  expression  in  the  legis- 
lation of  Congress  —  a  policy  which  looks  to  the 
breaking  up  of  tribal  relations,  the  establishing  of 
the  separate  Indians  in  individual  homes,  free  from 
national  guardianship  and  charged  with  all  the 
rights  and  obligations  of  citizens  of  the  United 
States.  Of  the  power  of  the  government  to  carry 
out  this  policy  there  can  be  no  doubt.  It  is  under 
no  constitutional  obligation  to  perpetually  continue 
the  relationship  of  guardian  and  ward.  It  may  at 
any  time  abandon  its  guardianship  and  leave  the 
ward  to  assume  and  be  subject  to  all  the  privileges 
and  burdens  of  one  sui  juris.  And  it  is  for  Congress 
to  determine  when  and  how  that  relationship  of 
guardianship  shall  be  abandoned.  It  is  not  within 
the  power  of  the  courts  to  overrule  the  judgment  of 
Congress.'' 

When,  in  pursuance  of  this  policy  of  encouraging 
the  abandonment  by  Indians  of  their  tribal  rela- 
tions, the  national  government  grants  the  privileges 


»Act  of  March  3,  1871,  c.  120,  carried  forward  into  Rev.  Stat. 
U.  S.,  9  2079,  3  Fed.  Stat.  Annot.  367. 


REGULATION    OF   COMMERCE  9 


of  citizenship  to  an  Indian,  gives  him  the  benefit  of  Chapter 
and  requires  him  to  be  subject  to  the  laws,  both  civil  ' 
and  criminal,  of  the  State,  it  places  him  outside  the 
reach  of  police  regulations  on  the  part  of  Congress ; 
the  emancipation  from  federal  control  thus  created 
cannot  be  set  aside  at  the  instance  of  the  govern- 
ment without  the  consent  of  the  individual  Indian 
and  the  State,  and  this  emancipation  from  federal 
control  is  not  affected  by  the  fact  that  the  lands  it 
has  granted  to  the  Indian  are  granted  subject  to  a 
condition  against  alienation  and  encumbrance,  or 
the  further  fact  that  it  guarantees  to  him  an  interest 
in  tribal  or  other  property. 

Until  this  emancipation  takes  place,  the  commer-  f^,*;Jjg^of 
cial  relations  with  the  Indians  and  the  Indian  tribes  i'^tercoursc 
remain  under  the  control  of  Congress.     The  power 
of  Congress  over  commerce  between  a  State  and  the  , 
Indian  Territory  is  not  less  than  its  power  over 
commerce  among  the  States.^      And  when  a  tribe 
exists  as  a  distinct  community  within  the  limits  of  a 
State,  occupying  its  own  territory  with  boundaries 
accurately  described,  intercourse  with  it  is  by  the 
Constitution  vested  in  the  government  of  the  United 
States.^ 

sHanley  V.  Kansas  City  Southern  R.  Co.,  (1903)  187  U.  S.  617. 

Congress  has  the  power  to  regulate  the  ownership  and  distribu- 
tion of  their  property,  Morris  v.  Hitchcock,  (1904)  194  U.  S.  388; 
Cherokee  Nation  v.  Hitchcock,  (1902)  187  U.  S.  294;  Stephens  v. 
Cherokee  Nation,  (1899)  174  U.  S.  445;  and  to  regulate  the  sale  of 
intoxicating  liquors,  Eic  p.  Crow  Dog,  (1883)  109  U.  S.  556;  U.  S. 
V.  Forty-three  Gallons  Whiskey,  (1883)  108  U.  S.  491;  U.  S.  V, 
Forty- three  Gallons  Whiskey,   (1876)   93  U.  S.  188. 

9U.  S.  V.  Kagama,  (1886)  118  U.  S.  375;  Howard  v.  Ingersoll, 
(1851)  13  How.  (U.  S.)  381;  Worcester  v.  Georgia,  (1832)  6  Pet. 
(U.  S.)  515. 


10  BEGULATION    OF    COMMERCE 

Cluster 

I-  DISTRICT    OF    COLUMBIA    AND    THE    TERRITORIES. 

The  Constitution  provides  that  Congress  shall 
have  power  **  to  exercise  exclusive  legislation  in 
all  cases  whatsoever,  over  such  district  (not  exceed- 
ing ten  miles  square)  as  may,  by  cession  of  particu- 
lar States,  and  the  acceptance  of  Congress,  become 
the  seat  of  the  government  of  the  United  States, ' '  ^ 
and   further   provides   that   *^  the    Congress    shall 
have  power  to  dispose  of  and  make  all  needful  rules 
and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States. '  *  ^ 
powlJ^oJer        Under  the  former  clause,  within  the  District  of 
of  cSum-*"'  Columbia,  organized  by  cessions  of  territory  from 
^^^*  the  States  of  Virginia  and  Maryland,  the  national 

and  local  powers  of  government  are  united  in  the 
government  of  the  Union.^  As  to  the  Territories,  it 
was  early  considered  that  the  latter  clause  was  the 
foundation  upon  which  the  territorial  governments 
rest,*  but  in  later  times,  as  questions  arose  regarding 
the  government  of  territory  acquired  by  conquest  or 
Pojver^over  treaty,  the  power  of  Congress  in  such  cases  was 
rather  regarded  as  an  incident  of  sovereignty  and 
as  arising  from  the  necessities  of  the  case  and  the 
inability  of  the  States  to  act  upon  the  subject.  In 
V.  S.  V.  Kagama,^  Mr.  Justice  Miller  said  that  *  ^  this 

Tlie  Cherokees  in  North  Carolina,  who  dissolved  their  connection 
with  their  nation  when  they  refused  to  accompany  the  tribe  on  its 
removal,  became  citizens  of  the  State  and  bound  by  its  laws. 
Cherokee  Trust  Funds,   (1886)   117  U.  S.  288. 

1  Article  I,  §  8,  cl.  17. 

2  Article  IV,  §  3,  cl.  2. 

3  Capital  Traction  Co.  v.  Hof,  (1899)  174  U.  S.  1;  Shoemaker 
r.  U.  S.,  (1893)  147  U.  S.  282;  Pollard  v.  Hagan,  (1845)  3  How. 
(U.  S.)  212;  Cohen  1?.  Virginia,  (1821)  6  Wheat.  (U.  S.)  264. 

*U.  S.  V.  Gratiot,  (1840)   14  Pet.   (U.  S.)  526. 
6  (1886)   118  U.  S.  375. 


as  an  inci- 
dent of 
•over- 
eignty. 


BEGULATION    OF    COMMERCE  11 

power  of  Congress  to  organize  territorial  govern-    Chapter 


ments,  and  make  laws  for  their  inhabitants,  arises  ' 
not  so  much  from  the  clause  in  the  Constitution  in 
regard  to  disposing  of  and  making  rules  and  regula- 
tions concerning  the  territory  and  other  property 
of  the  United  States,  as  from  the  ownership  of  the 
country  in  which  the  territories  are,  and  the  right 
of  exclusive  sovereignty  which  must  exist  in  the 
national  government,  and  can  be  found  nowhere 
else.'' 

It  is  not,  of  course,  within  the  scope  of  this  work  Relation  of 

'  ^  ^  the  District 

to  discuss  at  large  the  powers  of  the  national  gov-  rittrttlo''' 
ernment  over  the  District  of  Columbia  and  the  Ter-  a^nrthe 
ritories,  but  the  question  has  occasionally  arisen  as 
to  the  relation  of  the  District  and  the  Territories 
to  commerce  among  the  States.  In  Dowries  v.  Bid- 
well,^  Mr.  Justice  Brown  gives  a  well-nigh  exhaust- 
ive review  of  the  cases  involving,  in  a  constitutional 
sense,  the  government  of  the  District  and  the 
Territories,  and  thus  summarizes  the  decisions: 
* '  Eliminating,  then,  from  the  opinions  of  this  court 
all  expressions  unnecessary  to  the  disposition  of 
the  particular  case,  and  gleaning  therefrom  the 
exact  point  decided  in  each,  the  following  proposi- 
tions may  be  considered  as  established : 

''  1.  That  the  District  of  Columbia  and  the  Ter- 
ritories are  not  States,  within  the  judicial  clause  of 
the  Constitution  giving  jurisdiction  in  cases  between 
citizens  of  different  States ; 

' '  2.  That  Territories  are  not  States,  within  the 
meaning  of  Revised  Statutes,  §  709,  permitting  writs 
of  error  from  this  court  in  cases  where  the  validity 
of  a  State  statute  is  drawn  in  question ; 

''  3.    That  the  District  of  Columbia  and  the  Ter- 

6  (1901)    182  U.  S.  244. 


12  EEGULATION    OF   COMMERCE 

Chapter    ritories  are  States,  as  that  word  is  used  in  treaties 
.  with  foreign  powers,  with  respect  to  the  ownership, 

disposition,  and  inheritance  of  property ; 

**  4.  That  the  Territories  are  not  within  the 
clause  of  the  Constitution  providing  for  the  creation 
of  a  Supreme  Court  and  such  inferior  courts  as  Con- 
gress may  see  fit  to  establish; 

**  5.  That  the  Constitution  does  not  apply  to 
foreign  countries  or  to  trials  therein  conducted,  and 
that  Congress  may  lawfully  provide  for  such  trials 
before  consular  tribunals,  without  the  intervention 
of  a  grand  or  petit  jury ; 

*'  6.    That  where  the  Constitution  has  been  once 
formally    extended    by    Congress    to    Territories, 
neither  Congress  nor  the  territorial  legislature  can 
enact  laws  inconsistent  therewith." 
Mumdpai  It  was  argucd,  in  Stoutenburgh  v.  Eennick,'^  that 

S^c?w '  it  is  beyond  the  power  of  Congress  to  pass  a  law, 
solely  for  the  District  of  Columbia,  licensing  the 
business  of  selling  goods  by  sample.  In  that  case 
an  act  of  the  legislative  assembly  of  the  District  of 
Columbia,  requiring  commercial  agents  whose  busi- 
ness it  was  to  offer  merchandise  for  sale  by  sample 
to  take  out  a  license,  was  declared  to  be  invalid  as 
a  regulation  of  commerce.  In  a  dissenting  opinion, 
Mr.  Justice  Miller  said:  **  Commerce  by  a  citizen 
of  one  State,  in  order  to  come  within  the  constitu- 
tional provision,  must  be  commerce  with  a  citizen  of 
another  State;  and  where  one  of  the  parties  is  a 
citizen  of  a  Territory,  or  of  the  District  of  Columbia, 
or  of  any  other  place  out  of  a  State  of  the  Union,  it 
is  not  commerce  among  the  citizens  of  the  several 
States.'*  Nevertheless,  the  decision  of  the  court 
was  not  put  upon  the  ground  that  it  is  beyond  the 

t  (1889)    129  U.  S.  141. 


bia. 


REGULATION   OF   COMMERCE  13 

power  of  Congress  to  pass  a  law  of  that  character  Chapter 
solely  for  the  District,  but  because,  having  express  ' 
power  ^^  to  exercise  exclusive  legislation  in  all  cases 
whatsoever  "  over  the  District,  thus  possessing  the 
combined  powers  of  a  general  and  of  a  State  govern- 
ment in  all  cases  where  legislation  is  possible,  and 
having  created  the  District  of  Columbia  '^  a  body 
corporate  for  municipal  purposes,"  Congress  could 
only  authorize  it  to  exercise  municipal  powers.  As 
the  legislative  assembly  of  the  District  could  not 
exercise  other  than  municipal  powers,  it  was  without 
authority  to  enact  a  law  on  a  subject  which  called  for 
national  legislation.^ 

And  again,  in  Hanley  v.  Kansas  City  Southern  Reguutioa 
B.  Co.^  the  court  avoided  a  direct  holding  as  to  the  ^J^^jj; 
power  of  Congress  over  the  Territories  in  their  Jodlh?*** 
commercial  relations  with  the  States,  being  satisfied,  ^^*'*^' 
on  this  point,  with  the  suggestion,   through  Mr. 

sin  Beitzell  v.  District  of  Columbia,  (1903)  21  App.  Cas. 
(D.  C.)  49,  it  was  held  that  the  provision  of  the  Act  of  Congress 
of  July  1,  1902,  relating  to  the  District  of  Columbia,  and  requiring 
any  one  engaged  in  the  business  of  a  brewer's  agent  to  pay  a 
license  tax,  was  a  local  act  and  intended  to  have  a  local  operation 
only,  and  was  not  applicable  to  the  case  of  a  local  agent  of  a  firm 
of  brewers  whose  brewery  and  oflSces  were  located  in  another  State, 
the  court  saying:  "It  is  unnecessary  to  hold  in  this  case  that  this 
District  can  be  rightfully  treated  as  a  State  within  the  meaning  of 
the  Constitution,  in  considering  the  question  of  the  power  of  Con- 
gress to  regulate  commerce  as  between  this  District  and  the  several 
States  of  the  Union.  But  in  considering  the  effect  of  the  Act  in 
question,  it  is  not  fair  to  presume,  in  the  absence  of  an  express 
declaration  to  that  effect,  that  Congress  intended  to  disregard  the 
settled  principle  of  commercial  intercourse  of  the  country,  which, 
as  embodied  in  the  Constitution  of  the  country,  prohibits  a  State 
from  imposing  a  license  tax  upon  persons  representing  owners  of 
property  outside  of  the  State,  for  the  privilege  of  soliciting  orders 
within  it,  as  agents  of  such  owners,  for  property  to  be  shipped  to 
persons  within  the  State." 

»  (1903)   187  U.  S.  617. 


14  REGULATION    OF    COMMERCE 

Chapter  Justice  Holmes,  that  ^'  it  may  be  assumed  that  this 
'  power  of  Congress  over  commerce  between  Arkansas 
and  the  Indian  Territory  is  not  less  than  its  power 
over  commerce  among  the  States.  ^ '  ^  This  was  a 
case  involving  the  power  of  the  State  of  Arkansas 
to  regulate  the  rates  on  goods  shipped  from  one 
point  in  Arkansas  to  another  point  in  the  same 
State,  on  a  through  bill  of  lading,  part  of  the  journey 
being  through  the  Indian  Territory,  and  the  total 
distance  being  about  fifty-two  miles  in  Arkansas  and 
about  sixty-four  in  the  Indian  Territory.  In  hold- 
ing that  the  transportation  of  the  goods  was  not 
within  the  regulating  power  of  the  State,  the  court 
put  its  decision  upon  the  ground  stated  by  Mr. 
Justice  Field  in  Pacific  Coast  Steamship  Co.  v. 
Railroad  Com'rs,^  that  **  to  bring  the  transporta- 
tion within  the  control  of  the  State,  as  part  of  its 
domestic  commerce,  the  subject  transported  must  be 
within  the  entire  voyage  under  the  exclusive  juris- 
diction of  the  State. ' '  ^ 

1  Citing  Stoutenburgh  v.  Hennick,   (1889)    129  U.  S.  141. 

2  (1883)   9  Sawy.  (U.  S.)   253. 

3  In  U.  S.  V.  Whelpley,  (1903)  125  Fed.  Rep.  616,  District  Judge 
McDowell  said :  "  If  Chief  Justice  Marshall's  ruling  in  Hepburn 
V.  Ellzey,  (1804)  2  Cranch  (U.  S.)  445,  is  to  be  the  guide  in  con- 
struing the  meaning  of  the  word  '  State,'  as  found  in  the  Constitu- 
tion, it  may  seem  diflBcult  to  find  in  the  commerce  clause  authority 
to  forbid  shipments  from  any  State  to  a  Territory  or  to  the  District 
of  Columbia.  I  am  not  myself  expressing  an  opinion  on  the  con- 
stitutionality of  an  Act  of  Congress  regulating  commerce  from  a 
State  to  the  District  of  Columbia.  I  am  inclined  to  think  that  the 
implication  from  the  decision  in  Stoutenburgh  v.  Hennick,  (1889) 
129  U.  S.  141,  9  U.  S.  Sup.  Ct.  Rep.  256,  and  the  language  of  Mr. 
Justice  Holmes  in  Hanley  v.  Kansas  City  Southern  R.  Co.,  (1903) 
187  U.  S.  617,  23  U.  S.  Sup.  Ct.  Rep.  214,  are  sufficient  to  prevent 
a  subordinate  federal  court  from  holding  such  an  enactment  invalid, 
even  if  so  inclined."  In  the  Hepburn  v.  Ellzey  case,  referred  to  by 
Judge  McDowell,  it  was  held  that  the  District  of  Columbia  is  not 
a  "  State  "  within  the  meaning  of  Article  III,  section  2,  of  the  Con- 


REGULATION    OF    COMMERCE  15 


Chapter 
APPLICATION    OF    COMMON    LAW    AND    STATE    STATUTORY  1. 


RULES.  " 

There  is  no  common  law  of  the  United  States  in  no  national 

common 

the  sense  of  a  national  customary  law,*  no  abstract  ^^* 
pervading  principle  of  the  common  law  under  which 
the  federal  courts  can  take  jurisdiction.  Thus,  there 
are  no  common-law  offenses  against  the  United 
States,^  nor  is  there  a  common  law  of  copyright.  The 
federal  courts  have  jurisdiction  only  of  such  offenses 
as  are  defined  by  Acts  of  Congress,  and  copyright 
is  dependent  wholly  upon  legislation  by  Congress 
under  the  grant  of  power  ^  *  to  promote  the  progress 
of  science  and  useful  arts,  by  securing  for  limited 
times  to  authors  and  inventors  the  exclusive  right 
to  their  respective  writings  and  discoveries."  ^  But 
this  does  not  mean,  in  cases  of  which  the  federal 
courts  have  jurisdiction,  that  they  are  without  rules 
of  decision  in  the  absence  of  statutory  enactment. 
It  has  frequently  been  declared  by  the  courts  that 
the  principles  and  definitions  of  the  common  law  will 
be  followed  and  applied  in  the  construction  of  con- 
stitutions, statutes,  and  contracts. 

Principles  of  the  common  law  applicable  to  com-  {;^"°;^;i. 
mon  carriers  regulated  railway  traffic  before  the  f^Se^o''"' 
enactment  of  the  Interstate  Commerce  Act  of  Febru- 
ary 4,  1887.'^      Kentucky  Bank  v,  Adams  Express 

stitution,  giving  jurisdiction  to  the  federal  courts  of  cases  between 
citizens  of  different  States. 

4  See  Smith  v.  Alabama,  (1888)  124  U.  S.  465;  Wheaton  v. 
Peters,   (1834)    8  Pet.    (U.  S.)    591. 

5U.  S.  V.  Eaton,  (1892)  144  U.  S.  677;  Benson  v.  McMahon, 
(1888)  127  U.  S.  457;  U.  S.  v.  Britton,  (1883)  108  U.  S.  199; 
U.  S.  V.  Worrall,   (1798)   2  Ball.   (U.  S.)   384. 

« Banks  v.  Manchester,  (1888)    128  U.  S.  244. 

7  Ch.  104,  3  Fed.  Stat.  Annot.  809.  See  Interstate  Commerce 
Commission  v.  Baltimore,  etc.,  R.  Co.,   (1892)   145  U.  S.  263. 


common 
carriers. 


16  BEGULATION    OF   COMMERCE 

Chapter  Co.^  was  an  action  to  recover  the  value  of  pack- 
'  ages  containing  money,  which,  on  their  transporta- 
tion from  one  State  to  another  in  charge  of  a  mes- 
senger of  the  company,  were  destroyed  by  fire.  The 
express  company  set  up  in  defense  a  clause  in  the 
bill  of  lading  exempting  them  from  liability  for  loss 
by  fire.  It  was  held  that  the  defendants,  as  common 
carriers,  could  not,  by  any  contract,  relieve  them- 
selves from  responsibility  for  their  own  negligence 
or  that  of  their  servants  and  agents,  and  this  because 
such  a  contract  is  unreasonable  and  contrary  to 
public  policy.  It  was  said  by  Mr.  Justice  Brewer, 
in  Western  Union  Tel.  Co.  v.  Call  Pub.  Co.^  that 
**  the  whole  argument  of  the  opinion  [in  the  above 
case]  proceeds  upon  the  assumption  that  the 
common-law  rule  in  respect  to  common  carriers 
controlled." 

sute  laws         Section  721,  Eev.  Stat.  U.  S.,  provides  that  "■  the 

as  rules  of  '  '  ^ 

decision,  laws  of  the  several  States,  except  where  the  Consti- 
tution, treaties,  or  statutes  of  the  United  States 
otherwise  require  or  provide,  shall  be  regarded  as 
rules  of  decision  in  trials  at  common  law,  in  the 
courts  of  the  United  States,  in  cases  where  they 
apply.''  It  has  been  generally  held  under  this  stat- 
ute that  decisions  of  State  courts  on  questions  of 
general  jurisprudence  are  not  binding  upon  the  fed- 
eral courts,  but  that  modifications  declared  by  a 
State  constitution  or  statute  will  be  given  full  effect 
in  the  federal  courts  sitting  within  that  State.  In 
line  with  this  principle  is  the  recognition  of  the 
validity  of  a  State  statute  providing:  **  No  con- 
tract, receipt,  rule,  or  regulation  shall  exempt  any 
corporation  engaged  in   transporting  persons   or 

8(1876)  93  U.  S.  174. 
»  (1901)  181  U.  S.  92. 


BEGUIATION   OP    COMMBRCB  17 

property  by  railway  from  liability  of  a  common  car-  Chapter 
rier,  or  carrier  of  passengers,  which  would  exist  had  ' 
no  contract,  receipt,  rule,  or  regulation  been  made 
or  entered  into,''  so  far  as  it  concerns  liability  for 
injuries  happening  within  the  State  in  a  matter  of 
interstate  commerce.  In  sustaining  the  statute,  the 
court,  speaking  through  Mr.  Justice  Gray,  said: 
^^  The  question  of  the  right  of  a  railroad  corpora- 
tion to  contract  for  exemption  from  liability  for  its 
own  negligence  is,  indeed,  like  other  questions  affect- 
ing its  liability  as  a  common  carrier  of  goods  or  pas- 
sengers, one  of  those  questions  not  of  merely  local 
law,  but  of  commercial  law  or  general  jurisprudence, 
upon  which  this  court,  in  the  absence  of  express 
statute  regulating  the  subject,  will  exercise  its  own 
judgment,  uncontrolled  by  the  decisions  of  the  courts 
of  the  State  in  which  the  cause  of  action  arises.  But 
the  law  to  be  applied  is  none  the  less  the  law  of  the 
State ;  and  may  be  changed  by  its  legislature,  except 
so  far  as  restrained  by  the  constitution  of  the  State 
or  by  the  Constitution  or  laws  of  the  United 
States. ' '  ^  The  federal  courts  apply  the  principles 
of  the  common  law  as  adopted  by  the  several  States 
each  for  itself  as  its  local  law,  and  ^  *  a  determination 
in  a  given  case  of  what  that  law  is  may  be  different 
in  a  court  of  the  United  States  from  that  which  pre- 
vails in  the  judicial  tribunals  of  a  particular  State. 
This  arises  from  the  circumstance  that  the  courts  of 
the  United  States,  in  cases  within  their  jurisdiction, 
where  they  are  called  upon  to  administer  the  law  of 
the  State  in  which  they  sit  or  by  which  the  trans- 
action is  governed,  exercise  an  independent  though 
concurrent  jurisdiction,  and  are  required  to  ascer- 

iCaiicago,  etc.,  R.  Co.  v.  Solan,   (1898)   169  U.  S.  133. 
8 


18  EEGULATION   OF   COMMERCE 

Oiapter    tain  and  declare  the  law  according  to  their  own 

' judgment. ' '  ^ 

Application         And  in  the  State  courts  the  principles  of  the 

«oi  common-  -•■  -*- 


Ifi«by"""    common  law  may  be  applied  in  cases  arising  upon 
tate courts  ij^terstato  transactions.    The  case  of  Western  Union 


s 


■an  inter- 
jstate  trans 


^tions.  '  Tel.  Co.  V.  Call  Pub.  Co.^  was  an  action  begun  in  a 
State  court  to  recover  sums  alleged  to  have  been 
wrongfully  charged  and  collected  in  making  unjust 
discrimination  against  the  plaintiff  in  the  trans- 
mission of  press  dispatches.  The  case  was  sub- 
mitted to  the  jury  upon  the  propositions  that  where 
there  is  dissimilarity  in  the  services  rendered  a 
difference  in  charges  is  proper,  and  that  no  recovery 
can  be  had  unless  it  is  shown,  not  merely  that  there 
is  a  difference  in  the  charges,  but  that  that  differ- 
ence is  so  great  as,  under  dissimilar  conditions  of 
service,  to  show  an  unjust  discrimination,  and  that 
the  recovery  must  be  limited  to  the  amount  of  the 
unreasonable  discrimination,  and  was  affirmed  by  the 
Supreme  Court  of  the  State.  In  sustaining  the  State 
<!Ourts,  the  Supreme  Court  of  the  United  States, 
Mr.  Justice  Brewer  delivering  the  opinion,  said  that 
'*  no  one  can  doubt  the  inherent  justice  of  the  rules 
thus  laid  down.  * '  It  was  further  said  that  the  tele- 
graph company  *^  contends  that  there  is  no  federal 
common  law,  and  that  such  has  been  the  ruling  of 
this  court;  there  was  no  federal  statute  law  at  the 
time  applicable  to  this  case,  and  as  the  matter  is 
interstate  commerce,  wholly  removed  from  State 
jurisdiction,  the  conclusion  is  reached  that  there  is 
no  controlling  law,  and  the  question  of  rates  is  left 
entirely  to  the  judgment  or  whim  of  the  telegraph 

2  Per  Mr.  Justice  Matthews,  in  Smith  v.  Alabama,    (1888)    124 
U.  S.  465. 

3  (1901)    181  U.  S.  92. 


REGULATION    OP   COMMERCE  19 

company.     .     .     .    We  are  clearly  of  opinion  that    Chapter 
this  cannot  be  so,  and  that  the  principles  of  the  com-         ' 
mon  law  are  operative  upon  all  interstate  commer- 
cial transactions  except  so  far  as  they  are  modified 
by  congressional  enactment.'' 

Congress  may  make  provision  as  to  contracts  for  comroi  of 

.  .  contracts 

mterstate  carriage,  permitting  a  carrier  to  limit  its  f^^-j^ 
liability  to  a  particular  sum  in  consideration  of  lower 
rates  for  transportation.  But  in  the  absence  of  con- 
gressional legislation  on  the  subject,  a  State  may 
require  a  common  carrier,  although  in  the  execution 
of  a  contract  for  interstate  carriage,  to  be  liable  for 
the  whole  loss  resulting  from  negligence  in  the  dis- 
charge of  its  duties,  notwithstanding  a  contract  may 
have  been  entered  into  between  the  carrier  and  the 
shipper  limiting  the  carrier's  liability.  It  makes  no 
difference  as  to  the  power  of  the  State  in  this  respect 
whether  the  principle  is  enacted  into  a  statute,*  or 
results  from  the  rules  of  law  enforced  in  the  State 
courts,  so  far  as  the  principle  may  be  applied  in 
trials  in  the  State  courts.^ 

JUDICIAL  DEFINITIONS  OF  THE  TERM   COMMERCE. 

The  Constitution  gives  no  definition  of  the  word  Nodefini- 
*^  commerce."      In  determining  the  extent  of  the  ^onsutu- 
power  granted  to  Congress  *^  to  regiilate  commerce," 
it  is  necessary  to  understand  what  the  word  means 
in  this  connection,  or,  at  least,  to  know  to  what  sub- 

4  Chicago,  etc.,  R.  Co.  v.  Solan,  (1898)  169  U.  S.  133.  See  also 
Peirce  v.  Van  Dusen,  (1897)  78  Fed.  Rep.  693;  Ohio,  etc.,  R.  Co. 
V.  Tabor,  (1895)  98  Ky.  503;  Galveston,  etc.,  R.  Co.  v.  Fales,  (1903) 
33  Tex.  Civ.  App.  457;  Pittraan  v.  Pacific  Express  (^.,  (1900)  24 
Tex.  Civ.  App.  595. 

5  Pennsylvania  R.  Co.  v.  Hughes,    (1903)    191  U.   S.  477. 
See,  in  this  connection,  Richmond,  etc.,  R.  Co.  v.  R.  A.  Patterson 

Tobacco  Co.,  (1898)   169  U.  S.  311,  discussed  infra,  p.  162. 


tion. 


20 


REGULATION   OF   COMMERCE 


Chapter 


Judicial 
definitions 
of  inclu- 
sion. 


jeets  and  conditions  the  word  has  up  to  the  present 
time  been  recognized  by  the  courts  as  applicable. 
The  very  nature  of  the  grant  may  be  said  to  forbid 
an  attempt  at  exact  and  comprehensive  definition,  or 
at  any  rate  the  judicial  definitions  have  been  in  the 
nature  of  definitions  by  inclusion  and  exclusion  in 
the  exercise  of  the  duty  of  the  courts  to  deter- 
mine the  validity  or  invalidity  of  federal  and  State 
legislation. 

It  has  been  said  that  the  word  *'  commerce  "  is 

term  of  the  largest  import.^     It  includes  traffic  by 

the  purchase,  sale,  and  exchange  of  commodities,"^ 

.and  the  transportation  of  persons  and  property  by 

1  land  and  water.^     Navigation  is  also  included  as  an 

I  element  of  commerce,  as  one  of  the  means  of  inter- 

I  state  intercourse,  and  the  principal  means  by  which 

foreign  intercourse  is  effected.^     Except  in  the  case 

of  the  transportation  of  persons,  there  was  and 

could  be  little  controversy  in  the  adoption  of  these 

definitions. 

From  the  earliest  case,  construing  this  clause  of 

eWelton  v.  Missouri,  (1875)  91  U.  S.  275.  "We  know  from  the 
cases  decided  in  this  court  that  it  is  a  term  of  very  large  signifi- 
cance."   Hopkins  v.  U.  S.,  (1898)  171  U.  S.  578. 

^Addyston  Pipe,  etc.,  Co.  v.  U.  S.,  (1899)  175  U.  S.  211;  Pas- 
flenger  Cases,  (1849)   7  How.  (U.  S.)   283. 

8  Chicago,  etc.,  R.  Go.  v.  Fuller,  (1873)  17  Wall.  (U.  S.)  560; 
State  Freight  Tax  Case,  (1872)  15  Wall.  (U.  S.)  232;  Addyston 
l»lpe,  etc.,  Co.  V.  U.  S.,   (1899)   175  U.  S.  211. 

"Transportation  for  others,  as  an  independent  business,  is  com- 
merce, irrespective  of  the  purpose  to  sell  or  retain  the  goods  which 
the  owner  may  entertain  with  regard  to  them  after  they  shall  have 
bfeen  delivered."  Hanley  V.  Kansas  City  Southern  R.  Co.,  (1903) 
187  U.  S.  617. 

•  State  Tonnage  Tax  Cases,  (1870)  12  Wall.  (U.  S.)  204;  Pas- 
aenger  Cases,  (1849)  7  How.  (U.  S.)  283;  Gloucester  Ferry  Co.  v. 
Pennsylvania,  (1885)  114  U.  S.  196;  Henderson  r.  New  York, 
(1875)  92  U.  S.  259;  Oilman  v.  Philadelphia,  (1865)  3  Wall. 
(U.  S.)   713. 


BEGULATION   OF   COMMERCE  21 

the  Constitution,  decided  by  the  Supreme  Court  of    Chapter 

the  United  States,  that  of  Gibbons  v.  Ogden}  to  the  

recent  Lottery  Caser  and  the  case  of  Northern  Se- 
curities Co.  V.  U.  S.,^  the  definition  that  it  consists 
of  every  species  of  commercial  intercourse  has  been 
repeatedly  recognized,*  and  the  question  upon  which 
the  judges  have  been  divided  has  been  the  applica- 
tion of  this  definition.  The  results  might  justify 
more  than  a  mere  impression  that  it  includes  inter- 
course without  any  qualifying  adjective. 

In  the  Gibbons  v.  Ogden  case,  supra,  which  is  cwe^ 
examined  as  to  the  particular  holding  in  another  JifinSs. 
part  of  this  work,^  Marshall,  C.  J.,  said:  '*  The 
subject  to  be  regulated  is  commerce;  and  our  Con- 
stitution being,  as  was  aptly  said  at  the  bar,  one  of 
enumeration,  and  not  of  definition,  to  ascertain  the 
extent  of  the  power  it  becomes  necessary  to  settle 
the  meaning  of  the  word.  The  counsel  for  the 
appellee  would  limit  it  to  traffic,  to  buying  and  sell- 
ing, or  the  interchange  of  commodities,  and  do  not 
admit  that  it  comprehends  navigation.  This  would 
restrict  a  general  term,  applicable  to  many  objects, 
to  on^  of  its  significations.  Commerce,  undoubt- 
edly, is  traffic,  but  it  is  something  more ;  it  is  inter- 
course. It  describes  the  commercial  intercourse 
between  nations,  and  parts  of  nations,  in  all  its 
branches,  and  is  regulated  by  prescribing  rules  for/ 
carrying  on  that  intercourse."     The  great  chief | 

1  (1824)    9  Wheat.    (U.  S.)    1. 

2  (1903)   183  U.  S.  321. 

3  (1904)   193  U.  S.  197. 
4Peiisacola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  (1S77)  96  U.  S. 

1;  State  Tonnage  Tax  Cases,  (1870)   12  Wall.   (U.  S.)  204;  Passen- 
ger Cases,    (1849)    7  How.    (U.  S.)    283;  Henderson  v.  New  York, 
(1875)   92  U.  S.  259;  Hopkins  ».  U.  S.,  (1898)   171  U.  S.  578. 
5  See  infra,  p.  199. 


22  REGULATION    OF    COMMERCE 

Chapter  justice  later,  in  Brown  v.  Maryland,^  said  that  the 
'  power  of  Congress  to  regulate  commerce  is  complete 
in  itself  and  acknowledges  no  limitations  other  than 
are  prescribed  by  the  Constitution ;  also  that ' '  com- 
merce is  intercourse ;  one  of  its  most  ordinary  ingre- 

Definitions    dicuts  is  traffic.'^     In  the  Lottery  Case  Mr.  Justice 

stated  in  ^^  «^ 

the^  Lottery  jjarlau  Said :  '  ^  What  is  the  import  of  the  word 
'  commerce  '  as  used  in  the  Constitution?  It  is  not 
defined  by  that  instrument.  Undoubtedly,  the  carry- 
ing from  one  State  to  another  by  independent  car- 
riers of  things  or  commodities  that  are  ordinary 
subjects  of  traffic,  and  which  have  in  themselves  a 
recognized  value  in  money,  constitutes  interstate 
commerce.  But  does  not  commerce  among  the  sev- 
eral States  include  something  more?  Does  not  the 
carrying  from  one  State  to  another,  by  independent 
carriers,  of  lottery  tickets  that  entitle  the  holder  to 
the  payment  of  a  certain  amount  of  money  therein 
specified  also  constitute  commerce  among  the 
States  ?  ' '  And  he  further  said  that  the  cases  therein 
reviewed  show  ''  that  commerce  among  the  States 
embraces  navigation,  intercourse,  communication, 
traffic,  the  transit  of  persons,  and  the  transmission 
of  messages  by  telegraph.  * '  The  remarks  of  Chief 
Justice  Fuller,  in  the  dissenting  opinion,  in  which 
three  other  justices  concurred,  give  an  idea  of  the 
importance  of  this  case  as  recognizing  the  power  of 
Congress  to  legislate  upon  subjects  having  relation 

«  (1827)    12  Wheat.    (U.  S.)    419. 

"The  legal  definition  of  the  term,  as  given  by  this  court  in 
Mobile  County  v.  Kimball,  (1880)  102  U.  S.  691,  is  as  follows: 
*  Commerce  with  foreign  countries,  and  among  the  States,  strictly 
considered,  consists  in  intercourse  and  traffic,  including  in  these 
terms  navigation  and  the  transportation  and  transit  of  persons  and 
property,  as  well  as  the  purchase,  sale,  and  exchange  of  com- 
modities.*"   Kidd  V.  Pearson,  (1888)   128  U.  S.  1. 


REGULATION    OF    COMMERCE  23 

to  commerce  in  the  nature  of  interstate  intercourse.    Chapter 

He  said :     *  *  When  Chief  Justice  Marshall  said  that  

commerce  embraced  intercourse,  he  added,  commer- 
cial intercourse,  and  this  was  necessarily  so,  since, 
as  Chief  Justice  Taney  pointed  out,  if  intercourse 
were  a  word  of  larger  meaning  than  the  word  com- 
merce, it  could  not  be  substituted  for  the  word  of 
more  limited  meaning  contained  in  the  Constitution. 
Is  the  carriage  of  lottery  tickets  from  one  State  to 
another  commercial  intercourse  ?  The  lottery  ticket 
purports  to  create  contractual  relations  and  to  fur- 
nish the  means  of  enforcing  a  contract  right.  .  .  . 
If  a  lottery  ticket  is  not  an  article  of  commerce,  how 
can  it  become  so  when  placed  in  an  envelope  or  box 
or  other  covering,  and  transported  by  an  express 
company?  To  say  that  the  mere  carrying  of  an 
article  which  is  not  an  article  of  commerce  in  and  of 
itself  nevertheless  becomes  such  the  moment  it  is 
to  be  transported  from  one  State  to  another,  is  to 
transform  a  noncommercial  article  into  a  commer- 
cial one  simply  because  it  is  transported.  I  cannot 
conceive  that  any  such  result  can  properly  follow. 
It  would  be  to  say  that  everything  is  an  article  of 
commerce  the  moment  it  is  taken  to  be  transported 
from  place  to  place,  and  of  interstate  commerce  if 
from  State  to  State. ' ' 

RELATIVE  AUTHORITY  OF  CONGRESS  AND  THE  COURTS  TO 
DEFINE  THE  GRANTS  OF  POWER. 

It  has  been  said  that  the  very  nature  of  the  grant  The  qu»- 

•^  °  tion  and 

of  power  to  Congress  forbids  any  attempt  at  exact  ^.^jSpS"*^^ 
or  comprehensive  definition.    Any  definition,  whether 
statutory  or  judicial,  must  necessarily  be  merely 
inclusive  or  exclusive.      But  the  inquiry,  who  has 
the  power  primarily  to  define  the  term  commerce, 


24  REGULATION   OF   COMMERCE 

Chapter  ig  the  first  question  in  the  search  for  a  basic  princi- 
'  pie  of  constitutional  interpretation,  and  it  suggests 
the  proposition  that  to  the  legislative  department 
belongs  the  power  to  define  the  substantive  grants  of 
power  contained  in  the  Constitution,  except,  perhaps, 
those  powers  which  are  granted  to  the  executive 
department,  and  that  to  the  judicial  department  is 
confided  the  power  to  determine  whether  the  limita- 
tions and  prohibitions  prescribed  by  the  Constitution 
have  been  duly  observed.  It  is  our  purpose  here  to 
examine  this  question  in  the  light  of  some  other 
grants  of  power  contained  in  the  Constitution,  in 
order  to  obtain  aid  therefrom  in  the  attempt  to 
ascertain  the  limit,  if  any,  to  the  authority  of  Con- 
gress, under  the  grant  of  power  to  regulate  com- 
merce, to  define  the  term. 

Under  die  Cougrcss  is,  by  Article  I,  section  8,  given  *  *  power 

to  lay  and  collect  taxes,  duties,  imposts  and  excises, 
to  pay  the  debts  and  provide  for  the  common  defense 
and  general  welfare  of  the  United  States;  but  all 
duties,  imposts  and  excises  shall  be  uniform  through- 
out the  United  States;  "  and  section  2  of  the  same 
article  provides  that  '*  direct  taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  in- 
eluded  within  this  Union,  according  to  their  respec- 
tive numbers. ' '  It  must  be  within  the  power  of  the 
courts  to  define  what  is  meant  by  **  direct  ^'  taxes  in 
order  to  determine  in  any  given  case  whether  the 
constitutional  requirement  of  apportionment  has 
been  observed  in  the  levy  of  such  a  tax,  and  whether 
in  the  levy  of  duties,  imposts,  and  excises  the  pre- 
scribed rule  of  uniformity,  which  is  a  rule  of  limita- 
tion, has  been  obeyed.  But  otherwise  the  right  of 
Congress  to  tax  within  its  delegated  power  being 
imrestrained,  except  as  limited  by  the  Constitution, 


taxation 
clauses. 


REGULATION   OF   COMMERCE 


25 


Chapter 


it  is  within  the  authority  conferred  on  Congress  to 

select  the  objects  upon  which  an  excise  should  be  

laid,'  only  further  limited  by  the  consideration  that 
the  operations  of  a  State  government  cannot  be  con- 
sidered the  proper  subject  of  federal  taxation,  as  a 
State  tax  certificate,^  State  process,^  receipts  from 
municipal  bonds,^  or  the  salary  of  a  State  officer.^ 

The  guaranty  to  every  State  of  a  republican  Guaranty 

«  n  ,      .  .  ,  ^  to  States  of 

lorm  ot  government  is  given  m  terms  to  **  the  J^'^of*" 
United  States''  in  section  4  of  Article  IV,  and  it  S"" 
would  have  seemed  to  be  a  judicial  question  to  deter- 
mine what  is  the  established  government  in  a  State 
and  whether  it  conforms  to  the  requirements  of  being 
republican  in  form.  But  in  Luther  v.  Borden^  Chief 
Justice  Taney  said:  ^*  Under  this  article  of  the 
Constitution  it  rests  with  Congress  to  decide  wh^t 
government  is  the  established  one  in  a  State.  For 
as  the  United  States  guarantee  to  each  State  a 
republican  government,  Congress  must  necessarily 
decide  what  government  is  established  in  the  State 
before  it  can  determine  whether  it  is  republican  or 
not.  And  when  the  senators  and  representatives  of 
a  State  are  admitted  into  the  councils  of  the  Union, 
the  authority  of  the  government  under  which  they 

7McCray  v.  U.  S.,   (1904)    195  U.  S.  27. 

sBarden  v.  Columbia  County,    (1873)    33  Wis.  445. 

9  Smith  V.  Short,  (1867)  40  Ala.  385;  Tucker  v.  Potter,  (1868), 
55  Conn.  43;  Craig  v.  Dimock,  (1868)  47  IlL  308;  Warren  v.  Paul, 
(1864)  22  Ind.  276;  Fifield  v.  Close,  (18G7)  15  Mich.  505;  Copper- 
noil  V.  Ketcham,  (1867)  56  Barb.  (N.  Y.)  Ill;  Dawson  v.  McCarty, 
(1899)   21  Wash.  314;  Jones  v.  Keep,   (1865)   19  Wis.  369. 

Attorney-General  Stanbery  advised  the  Secretary  of  the  Treasury 
that  the  stamp  duty  on  writs  and  other  legal  papers  imposed  by 
the  Internal  Revenue  Act  of  June  30,  1864,  was  constitutional.  See 
Stamp  Tax  on  Writs,   (1866)    12  Op.  Atty.-Gen.  23. 

1  Pollock  r.  Farmers'  L.  &  T.  Co.,   (1895)   158  U.  S.  601. 

2  Collector  v.  Day,   (1870)   11  Wall.  (U.  S.)   113. 

3  (1849)  7  How.  (U.  S.)   1. 


26  REGULATION    OF    COMMERCE 

Chapter    are  appointed,  as  well  as  its  republican  character,  is 

'. recognized  by  the  proper  constitutional  authority. 

And  its  decision  is  binding  on  every  other  depart- 
ment of  the  government,  and  could  not  be  questioned 
in  a  judicial  tribunal. ' '  * 

Power  of  Congress  to  Define  a  Case  in  Equity. 

mil? c^  The  grant  of  judicial  power  in  Article  III,  sec- 
aiid^^''  tion  2,  also  presents  questions  as  to  the  power  of 
equity."  Cougress  to  determine  to  what  extent  and  in  what 
manner  the  powers  granted  shall  be  exercised.  The 
section  provides  that  the  judicial  power  shall  extend, 
in  part,  *^  to  all  cases,  in  law  and  equity,  arising 
under  this  Constitution,  the  laws  of  the  United 
States,  and  treaties  made,  or  which  shall  be  made, 
under  their  authority."  Although  the  power  of 
Congress  to  define  a  case  in  equity,  and  declare  what 
is  or  what  is  not  a  case  of  equitable  cognizance,  has 
not  perhaps  been  clearly  determined,  there  is  room 
for  discussion  and  the  exercise  of  individual  judg- 
ment until  the  question  is  more  clearly  and  authori- 
tatively decided. 
Application        Mauv  cascs  declare  that  the  federal  courts  cannot 

of  section  *^  ,  '         p  ^  i  t 

lut^u's  Permit  the  blending  together  m  one  smt  of  legal  and 
equitable  remedies  or  the  setting  up  of  equitable  de- 
fenses to  actions  at  law.  In  almost  every  case  it 
will  be  found  that  the  question  has  arisen  on  the 
application  of  section  914  of  the  Revised  Statutes  of 
the  United  States.  That  section  provides:  **  The 
practice,  pleadings,  and  forms  and  modes  of  pro- 
ceeding in  civil  causes,  other  than  equity  and  admi- 
ralty causes,  in  the  circuit  and  district  courts,  shall 
conform,  as  near  as  may  be,  to  the  practice,  plead- 

*See  also  Texas  v.  White,  (1868)   7  Wall.  (U.  S.)   700. 


BEGULATION    OF    COMMERCE  27 

ings,  and  forms  and  modes  of  proceeding  existing  at    Chapter 

the  time  in  like  causes  in  the  courts  of  record  of  the 

State  within  which  such  circuit  or  district  courts 
are  held,  any  rule  of  court  to  the  contrary  notwith- 
standing. ' '  ^  It  will  be  observed  that  the  statute  in 
terms  excludes  equity  causes,  and  aside  from  that 
consideration,  inasmuch  as  the  distinction  between 
cases  at  law  a^d  in  equity  is  so  clearly  recognized 
by  the  Constitution,  it  could  not  be  supposed  that 
Congress  intended  that  the  federal  courts  should 
follow  the  State  statutes  abolishing  the  distinction 
between  legal  and  equitable  remedies,  in  the  absence 
of  express  federal  statutory  authority,  even  if  it  be 
admitted  that  Congress  has  the  right  to  do  so.  But 
it  is  another  matter  to  say  that  Congress  cannot 
declare  what  is  a  case  in  equity. 

In  Irvine  v.  Marshall,^  Mr.  Justice  Daniel,  speak-  judicial 
ing  for  the  court,  said :  '  *  With  regard  to  the  fourth 
objection,  of  a  want  of  jurisdiction  in  the  courts  of 
the  United  States,  in  the  absence  of  express  statu- 
tory provisions,  to  recognize  and  enforce  a  resulting 
trust  like  that  presented  by  the  present  case,  it  is  a 
sufficient  response  to  say  that  the  jurisdiction  of  the 
courts  of  the  United  States  is  properly  commen- 
surate with  every  right  and  duty  created,  declared, 
or  necessarily  implied,  by  and  under  the  Constitu- 
tion and  laws  of  the  United  States.**  The  ex- 
pression **  in  the  absence  of  express  statutory  pro- 
visions "  should  be  particularly  noticed,  as  also 
'*  by  and  under  the  Constitution  and  laws  of  the 
United  States,"  to  which  combination  of  constitu- 
tional and  statutory  authority  the  courts  invariably 
refer  as  the  source  of  their  authority.     And  in  a 

5  4  Fed.  Stat.  Annot.  563. 

«  (1857)   20  How.    (U.  S.)   558. 


28 


REGULATION   OF   COMMERCE 


Power  of 
territorial 
legislature 
to  ignore 
distinction. 


Circuit  Court  of  Appeals  case/  in  which  Mr.  Justice 
Brewer,  as  circuit  justice,  was  one  of  the  judges, 
the  court  said:  ''  Congress  undoubtedly  had  the 
power  to  define  what  should  be  a  case  in  equity  by 
declaring  what  the  common  law  was  which  drew  the 
line  between  the  courts  of  law  and  equity,  and  there 
can  be  no  doubt  that,  when  so  declared,  that  declara- 
tion was  obligatory  upon  the  federal  courts  by  super- 
adding the  authority  of  the  legislative  department 
of  the  government  to  that  of  the  common  law,  so  as 
not  to  leave  the  line  of  separation  discretionary  with 
the  judges. ' '  * 

A  case  apparently  in  direct  opposition  to  the 
principle  suggested  is  that  of  Dunphy  v.  Klein- 
smith,^  which  held,  under  the  organic  law  of  a  Terri- 
tory, that  the  territorial  legislature  had  no  power 
to  pass  any  law  in  contravention  of  the  Constitution 
of  the  United  States,  or  which  should  deprive  the 
courts  of  the  Territory  of  chancery  as  well  as  com- 
mon-law jurisdiction.     Though  required  by  express 


7  Smith  V.  American  Nat.  Bank,   (1898)  89  Fed.  Rep.  832. 

8  "  Wherever  a  case  in  equity  may  arise  and  be  determined,  under 
the  judicial  power  of  the  United  States,  the  same  principles  of 
equity  must  be  applied  to  it,  and  it  is  for  the  courts  of  the  United 
States,  and  for  this  court  in  the  last  resort,  to  decide  what  those 
principles  are,  and  to  apply  such  of  them  to  each  particular  case 
as  they  may  find  justly  applicable  thereto.  These  principles  may 
make  part  of  the  law  of  a  State,  or  they  may  have  been  modified  by 
its  legislation  or  usages,  or  they  may  never  have  existed  in  its 
jurisprudence.  Instances  of  each  kind  may  now  be  found  in  the 
several  States.  But  in  all  the  States  the  equity  law,  recognized 
by  the  Constitution  and  by  Acts  of  Congress,  and  modified  by 
the  latter,  is  administered  by  the  courts  of  the  United  States,  and 
upon  appeal  by  this  court."  Per  Mr.  Justice  Curtis,  in  Neves  v, 
Scott,  (1851)    13  How.   (U.  S.)  268. 

"  The  office  and  jurisdiction  of  a  court  of  equity,  unless  enlarged 
by  express  statute,  are  limited  to  the  protection  of  rights  of  prop- 
erty."   Per  Mr.  Justice  Gray,  in  In  re  Sawyer,  (1888)   124  U.  S.200. 

»  (1870)   11  Wall.   (U.  S.)   610. 


BEGULATION    OF    COMMEBCB  29 

territorial  statute,  conducting  the  trial  of  a  case  Chapter 
clearly  of  chancery  jurisdiction  as  a  trial  at  common  ' 
law,  and  rendering  a  decree  on  the  verdict  precisely 
as  a  judgment  is  rendered  on  a  verdict  at  common 
law,  was  held  to  be  error.  *'  The  case,*'  said  Mr. 
Justice  Bradley,  **  being  a  chancery  case,  and  being 
instituted  as  such,  should  have  been  tried  as  a  chan- 
cery case  by  the  modes  of  proceeding  known  to 
courts  of  equity.  In  those  courts  the  judge  or  chan- 
cellor is  responsible  for  the  decree.  If  he  refers 
any  questions  of  fact  to  a  jury,  as  he  may  do  by  a 
feigned  issue,  he  is  still  to  be  satisfied  in  his  own 
conscience  that  the  finding  is  correct,  and  the  decree 
must  be  made  as  the  result  of  his  own  judgment, 
aided,  it  is  true,  by  the  finding  of  the  jury. ' '  This 
case,  however,  passing  merely  upon  the  power  of  a 
territorial  legislature,  cannot  be  considered  as  con- 
clusive authority  on  the  question  whether  Congress 
has  power  to  define  the  line  between  the  courts  of 
law  and  of  equity.^* 

9*  The  theory  of  the  case  of  Dunphy  v.  Kleinsmith,  supra,  in  oppo- 
sition to  the  principle  suggested,  is  weakened  by  the  subsequent 
case  of  Hornbuckle  ».  Toombs,  (1873)  18  Wall.  (U.  S.)  648,  wherein 
the  court,  holding  that  the  practice,  pleadings,  and  forms  and  modes 
of  proceeding  of  the  territorial  courts,  as  well  as  their  respective 
jurisdictions,  subject  to  a  few  express  or  implied  conditions  in  the 
organic  act  itself,  were  intended  to  be  left  to  the  legislative  action 
of  the  territorial  assemblies,  and  to  the  regulations  which  might 
be  adopted  by  the  courts  themselves,  and  speaking  through  Mr.  Jus- 
tice Bradley,  said :  "  The  only  provision  is,  that  the  courts  named 
shall  possess  both  jurisdictions.  If  the  two  jurisdictions  had  never 
been  exercised  in  any  other  way  than  by  distinct  modes  of  proceed- 
ing, there  would  be  ground  for  supposing  that  Congress  intended 
them  to  be  exercised  in  that  way.  But  it  is  well  known  that  in  many 
States  of  the  Union  the  two  jurisdictions  are  commingled  in  one 
form  of  action.  And  there  is  nothing  in  the  nature  of  things  to 
prevent  such  a  mode  of  proceeding.  Even  in  the  Circuit  and  Dis- 
trict Courts  of  the  United  States  the  same  court  is  invested  with  the 
two  jurisdictions,  having  a  law  side  and  an   equity  side;   and  the 


30 


REGULATION    OF    COMMERCE 


Chapter 


Preserva- 
tion of 
right  of 
trial  by 
jury. 


But  this  subject  is  to  be  considered  in  the  light 
of  the  clause  of  the  Seventh  Amendment  providing 
that  **  in  suits  at  common  law,  where  the  value  in 
controversy  shall  exceed  twenty  dollars,  the  right 
of  trial  by  jury  shall  be  preserved.''  In  Ellis  v, 
Davis^  Mr.  Justice  Matthews,  delivering  the  opinion 
of  the  court,  said :  ^  ^  It  has  often  been  decided  by 
this  court  that  the  terms  '  law  '  and '  equity  '  as  used 
in  the  Constitution,  although  intended  to  mark  and 
^x  the  distinction  between  the  two  systems  of  juris- 
prudence as  known  and  practiced  at  the  time  of  its 
adoption,  do  not  restrict  the  jurisdiction  conferred 
by  it  to  the  very  rights  and  remedies  then  recog- 
nized and  employed,  but  embrace  .  .  .  new  forms 
of  remedies  to  be  administered  in  the  courts  of  the 
United  States,  according  to  the  nature  of  the  case, 
so  as  to  save  to  suitors  the  right  of  trial  by  jury  in 
cases  in  which  they  are  entitled  to  it,  according  to  the 
course  and  analogy  of  the  common  law."  In  Root 
V.  Lake  Shore,  etc.,  R.  Co.^  the  same  learned  justice 
said:  *^  It  is  the  settled  doctrine  of  this  court  that 
this  distinction  of  jurisdiction,  between  law  and 

enforced  separation  of  the  two  remedies,  legal  and  equitable,  in 
reference  to  the  same  subject-matter  of  controversy,  sometimes  leads 
to  interesting  exhibitions  of  the  power  of  mere  form  to  retard  the 
administration  of  justice.  In  most  cases  it  is  difficult  to  see  any 
good  reason  why  an  equitable  right  should  not  be  enforced  or  an 
equitable  remedy  administered  in  the  same  proceeding  by  which  the 
legal  rights  of  the  parties  are  adjudicated.  Be  this,  however,  aa  it 
may,  a  consolidation  of  the  two  jurisdictions  exists  in  many  of  the 
States,  and  must  be  considered  as  having  been  well  known  to  Con- 
gress; and  when  the  latter  body,  in  the  organic  act,  simply  declares 
that  certain  territorial  courts  shall  possess  both  jurisdictions,  with- 
out prescribing  how  they  shall  be  exercised,  the  passage  by  the  terri- 
torial assembly  of  a  code  of  practice  which  unites  them  in  one  form 
of  action  cannot  be  deemed  repugnant  to  such  organic  act." 

1  (1883)    109  U.  S.  485. 

»  (1881)    106  U.  S.  189. 


REGULATION    OF    COMMERCE  31 

equity,  is  constitutional,  to  the  extent  to  which  the    Chapter 

Seventh  Amendment  forbids  any  infringement  of         ' 

the  right  of  trial  by  jury,  as  fixed  by  the  common 
law.'^ 

From  all  this  it  may  not  unreasonably  be  inferred  Sated"^^°" 
that  Congress  has  the  power  to  transfer  causes  com- 
monly understood  to  be  equitable  in  their  nature  to 
the  law  side  of  the  courts,  but  that  its  power  to  give 
to  courts  of  equity  jurisdiction  of  so-called  actions 
at  law  is  limited  by  the  necessity  to  preserve  the 
constitutional  right  of  trial  by  jury  **  in  suits  at 
common  law." 

Power  of  Congress  to  Define  the  Admiralty 
Jurisdiction. 

As  further  illustrating  the  power  of  Congress  to 
determine  the  scope  of  constitutional  grants,  its 
power  to  determine  the  limits  of  the  exercise  of 
admiralty  jurisdiction,  under  the  clause  of  Article 
III,  section  2,  providing  that  the  judicial  power 
shall  extend  ^'  to  all  cases  of  admiralty  and  mari- 
time iurisdiction, "  may  also  be  considered.    As  to  subjects  of 

.  .        .       .  ,  admiralty 

the  subjects  of  that  jurisdiction,  there  can  now  be  jHjj^^*^- 
no  question  of  the  power  of  the  federal  legislature 
to  grant  to  or  withhold  from  the  federal  cQurts  juris- 
diction in  admiralty  of  any  subject  that  has  any 
relation  to  maritime  affairs.  It  was  said  by  Mr. 
Justice  Bradley,  in  In  re  Garnett:^  ''  The  Act  of 
Congress  which  limits  the  liability  of  ship  owners 
was  passed  in  amendment  of  the  maritime  law  of 
the  country,  and  the  power  to  make  such  amend- 
ments is  coextensive  with  that  law.  It  is  not  con- 
fined to  the  boundaries  or  class  of  subjects  which 

«  (1891)    141  U.  S.  1. 


32 


BEGULrATION    OF    COMMERCE 


Chapter 


Territorial 
jurisdic- 
tion. 


Statutory 
departure 
from  Eng- 
lish doc- 
trine. 


limit  and  characterize  the  power  to  regulate  com- 
merce; hnt,  in  maritime  matters,  it  extends  to 
all  matters  and  places  to  which  the  maritime  law 
extends. ' ' 

But  the  power  of  Congress  to  determine  the  ter- 
ritorial jurisdiction  in  admiralty  is  not  so  clear. 
For  over  fifty  years  after  the  adoption  of  the  Con- 
stitntion  and  the  enactment  of  the  Act  of  Congress  * 
giving  to  the  District  Courts  of  the  United  States 
general  jurisdiction  in  admiralty,  the  courts,  follow- 
ing the  English  doctrine,  declared  that  admiralty 
jurisdiction  in  cases  purely  dependent  upon  the 
locality  of  the  act  done  was  limited  to  the  sea  and  to 
tide  waters  as  far  as  the  tide  flows.^ 

In  1845  Congress  passed  an  Act^  providing 
*  *  That  the  District  Courts  of  the  United  States  shall 
have,  possess,  and  exercise  the  same  jurisdiction  in 
matters  of  contract  and  tort,  arising  in,  upon,  or 
concerning  steamboats  and  other  vessels  of  twenty 
tons  burden  and  upwards,  enrolled  and  licensed  for 
the  coasting  trade,  and  at  the  time  employed  in  busi- 
ness of  commerce  and  navigation  between  ports  and 
places  in  different  States  and  Territories  upon  the 
lakes  and  navigable  waters  connecting  said  lakes, 
as  is  now  possessed  and  exercised  by  the  said  courts 
in  cases  of  the  like  steamboats  and  other  vessels  em- 
ployed in  navigation  and  commerce  upon  the  high 
seas,  or  tide  waters,  within  the  admiralty  and  mari- 
time jurisdiction  of  the  United  States." 

Under  this  Act  the  case  of  The  Propeller  Genesee 


4  Act  of  September  24,  1789,  c.  20,  brought  forward  into  section 
663,  Rev.  Stat.  U.  S.,  4  Fed.  Stat.  Annot.  220. 

5  See  The  Steamboat  Thomas  Jefferson,  (1825)  10  Wheat.  (U.  S.) 
428 J  The  Steamboat  Orleans  v.  Phoebus,  (1837)   11  Pet.  (U.  S.)   176. 

•  Act  of  February  26,  1845,  5  Stat,  at  L.  726,  c.  20. 


BEGULATION    OF    COMMERCE  33 

Chief  V.  Fitzhugh  '^  was  brought  by  filing  a  libel  for  Chaptet 
the  condemnation  of  a  vessel  and  the  payment  of 
damages  on  account  of  a  collision  which  occurred  on  sutute 
Lake  Ontario.  In  holding  the  Act  of  Congress  to  be 
a  valid  enactment,  the  court,  after  restating  the 
territorial  admiralty  jurisdiction  according  to  the 
English  doctrine,  said,  through  Chief  Justice  Taney: 
'*  The  nature  of  the  questions  concerning  the  extent 
of  the  admiralty  jurisdiction,  which  have  arisen  in 
this  court,  were  not  calculated  to  call  its  attention 
particularly  to  the  one  we  are  now  considering.  The 
point  in  dispute  has  generally  been,  whether  the 
jurisdiction  was  not  as  limited  in  the  United  States 
as  it  was  in  England  at  the  time  the  Constitution 
was  adopted.  And  if  it  was  so  limited,  then  it  did 
not  extend  to  contracts  for  maritime  services  when 
made  on  land;  nor  to  torts  and  collisions  on  a  tide- 
water river,  if  they  took  place  in  the  body  of  a 
country.  The  attention  of  the  court,  therefore,  in 
former  cases,  has  been  generally  strongly  attracted 
to  that  question,  and  never,  we  believe,  until  re- 
cently, drawn  to  the  one  we  are  now  discussing, 
except  in  the  case  of  The  Thomas  Jefferson,  after- 
wards followed  in  The  Steamboat  Orleans  v.Phwbus, 
as  already  mentioned.  For,  with  this  exception,  the 
cases  always  arose  on  contracts  for  services  on  tide- 
water, or  were  upon  libels  for  collisions  or  other 
torts  committed  within  the  ebb  and  flow  of  the  tide. 
There  was  therefore  no  necessity  for  inquiring 
whether  the  jurisdiction  extended  further  in  a  public 
navigable  water.  And  following  the  English  defini- 
tion, tide  was  assxuned  and  spoken  of  as  its  limit; 
although  that  particular  question  was  not  before  the 
court.    ...    It  is  evident  that  a  definition  that 

T  (1851)   12  How.  (U.  S.)  443. 


34  EEGULATION    OF    COMMERCE 

iCSiapter    would  at  this  day  limit  public  rivers  in  this  country 

^ to  tide-water  rivers  is  utterly  inadmissible.      We 

have  thousands  of  miles  of  public  navigable  water, 
including  lakes  and  rivers  in  which  there  is  no  tide. 
And  certainly  there  can  be  no  reason  for  admiralty 
power  over  a  public  tide-water,  which  does  not  apply 
with  equal  force  to  any  other  public  water  used  for 
commercial  purposes  and  foreign  trade.  The  lakes 
and  the  waters  connecting  them  are  undoubtedly 
public  waters ;  and  we  think  are  within  the  grant  of 
admiralty  and  maritime  jurisdiction  in  the  Constitu- 
tion of  the  United  States."  This  new  doctrine  was 
afterwards  followed  in  all  admiralty  causes  arising 
on  any  of  the  navigable  waters  of  the  United  States. 
5tetntecon-  But  the  difficulty  now  encountered,  on  the  ques- 
atctaratory.  tiou  of  the  powcr  of  the  legislature  to  define  the 
territorial  jurisdiction,  is  that  presented  by  the  re- 
marks of  Nelson,  J.,  in  T}ie  Eagle f'  affirming  the 
general  admiralty  jurisdiction  over  all  the  navigable 
waters  of  the  United  States,  wherein  he  said :  *  *  One 
question,  and  a  very  important  one,  is,  whether, 
since  the  decision  of  The  Genesee  Chief,  which  opens 
the  lakes  and  the  waters  connecting  them  to  the  gen- 
eral jurisdiction  of  the  District  Courts  in  admiralty, 
^they  can  entertain  this  jurisdiction  in  cases  outside 
of  that  conferred  by  this  Act?  If  the  affirmative  of 
this  question  should  be  sustained,  although  the  sys- 
tem would  be  disjointed  and  incongruous,  yet  it 
would,  in  its  result,  remedy  most  of  the  difficulties 
and  inconveniences  now  existing.  But  the  opinions 
of  the  judges  of  this  court,  as  expressed  in  several 
teases,  though  the  question  has  never  been  directly 
before  the  court  for  decision,  are,  that  the  Act  should 
he  regarded  as  restrictive  of  the  general  jurisdiction 

8(1868)  8  Wall.  (U.  S.)   16. 


REGULATION    OP    COMMERCE  35 

of  these  courts.  This  was  the  opinion  expressed  by  Chapter 
the  Chief  Justice  in  the  case  of  The  Genesee  Chief,  ' 
and  has  been  followed  by  other  justices  in  this  court, 
who  have  had  occasion  to  express  any  opinion  in 
the  subject.  The  history  and  operation  of  this  Act 
of  1845  are  peculiar.  It  is  *  an  Act  extending  the 
jurisdiction  of  the  District  Courts  to  certain  cases 
upon  the  lakes  and  navigable  waters  connecting  the 
same. '  At  the  time  it  was  enacted  it  had  the  effect 
expressed  and  intended,  and  so  continued  for  some 
seven  years,  when  the  case  of  The  Genesee  Chief 
was  decided.  From  that  time  its  effect  ceased  as  an 
enabling  act;  and  has  been  no  longer  regarded  as 
such.  It  is  no  longer  considered  by  this  court  as 
conferring  any  jurisdiction  in  admiralty  upon  the 
District  Courts  over  the  lakes,  or  the  waters  con- 
necting them.  That  is  regarded  as  having  been 
conferred  by  the  grant  of  general  admiralty  juris- 
diction by  the  ninth  section  of  the  Act  of  1789  to 
these  courts."  From  this  it  will  be  seen  that  the 
English  doctrine  was  followed  by  the  courts  until 
the  Act  of  1845,  which  may  be  considered  in  the 
nature  of  a  legislative  definition  of  the  constitu- 
tional grant  of  jurisdiction,  followed  by  judicial 
recognition  and  extension  of  the  definition  and  con- 
struction of  the  constitutional  grant  extending  the 
jurisdiction  to  all  the  navigable  waters  of  the  United 
States. 

It  should  be  noticed,  however,  that  this  assump-  Jj^^gJ/^^ 
tion  of  jurisdiction  over  all  navigable  waters  by  Sfa''°" 
judicial  construction  of  the  constitutional  grant  is  fSutl' 
imder  the  statute  of  1789,  conferring  on  the  District 
Courts  general  admiralty  jurisdiction,  and  has  not 
foreclosed  consideration  of  the  power  of  Congress 
to  limit  by  express  statute  this  territorial  jurisdic- 


36  REGULATION   OP   COMMERCE 

Chapter  tion  of  the  federal  courts  in  admiralty  to  particular 
'  waters.  Whether  the  jurisdiction  in  admiralty  ex- 
tends to  all  the  navigable  waters  of  the  United 
States,  conforming  in  this  respect  rather  to  the  civil 
than  the  common  law,  as  is  now  held  under  the 
general  statute,  or  whether  the  jurisdiction  shall  be 
limited  to  the  high  seas  and  to  tide  waters,  would 
seem  to  be  a  matter  of  legislative  discretion,  but  as 
it  exists  now,  the  general  statute  leaves  the  terri- 
torial extent  of  the  jurisdiction  a  matter  for  judicial 
determination. 

Legisia-  Wc  arc  uot  concemcd  here  with  the  expediency 

tion  neces-  ^   ^  ^  j.  ^ 

Serdse  of  ^^  ^^  probability  of  the  exercise  of  this  supposed 
piwen  power  by  Congress,  but  the  abstract  question  of  the 
existence  of  the  power  is  of  interest,  as  furnishing 
illustration  of  the  wide  powers  of  definition  which 
Congress  possesses.  In  U.  S,  v.  Hudson,^  Mr.  Jus- 
tice Johnson  said  that  *'  of  all  the  courts  which  the 
United  States  may,  under  their  general  powers,  con- 
stitute, one  only  —  the  Supreme  Court  —  possesses 
jurisdiction  derived  immediately  from  the  Constitu- 
tion and  of  which  the  legislative  power  cannot 
deprive  it,"  and  the  remark  has  been  quoted  with 
approval  by  Chief  Justice  Fuller.^ 

Power  of  Congress  to  Define  the  Term  Commerce. 
What  is  When  the  power  of  Congress  to  define  the  term 

meant  by  ^  .     .  „ 

lerisiauve    <  *  commcrcc  ' '  is  referred  to,  it  is  not  of  course  meant 

definition,    j  ' 

that  any  attempt  would  be  made  to  give  a  statutory 
definition  as  such  to  the  word,  but  that  when  Con- 
gress legislates  on  a  particular  subject  under  the 
grant  of  power  to  regulate  commerce,  it  thereby,  in 

»  (1812)  7  Cranch  (U.  S.)  32. 
iStcTenson  v.  Fain,  (1904)   195  U.  S.  165. 


REGULATION   OF   COMMERCE  37 

effect,  gives  a  partial  definition  to  the  term  as  includ-  Chapter 
ing  the  particular  subject-matter  of  the  statute.  ' 
This  authority  to  define  may  be  discussed  in  view  of 
the  wide  power  of  definition  which  Congress  seems 
to  possess,  as  appears  from  the  foregoing  canvass 
of  several  of  the  constitutional  grants,  and  also  from 
an  examination  of  a  few  suggestive  cases  which  have 
arisen  under  the  commerce  clause. 

Unlike  many  of  the  words  and  phrases  used  in  The  term 
the  Constitution,   the  term  *'  commerce  "  has  no  juridical 

signii- 

juridical  significance  or  meaning.  The  words  due  *^°'^^* 
process  of  law,  trial  by  jury,  law  and  equity,  admi- 
ralty and  maritime,  habeas  corpus,  bill  of  attainder, 
ex  post  facto,  duty  of  tonnage,  and  many  other  terms 
and  expressions  contained  in  that  instrument,  had 
well-understood  places  and  meaning  in  the  system 
of  jurisprudence  with  which  the  framers  of  the  Con- 
stitution were  familiar. 

It  can  never  be  questioned  that  to  determine  the  judicial 
operation  of  the  constitutional  limitations,  and  in  define  the 

^  ,  ^  hmitations. 

doing  so  to  define  the  terms  used,  is  necessarily  one 
of  the  functions  of  the  courts.  Included  in  this 
power,  so  far  as  relates  to  the  commerce  clause,  is 
the  right  and  duty  of  the  courts  to  see  that  federal 
legislation  operates  only  on  that  commerce  which 
is  ''  with  foreign  nations,  and  among  the  several 
States,  and  with  the  Indian  tribes."  It  is  also 
the  province  of  the  courts  to  see  that,  in  legislating 
upon  this  branch  of  commerce,  none  of  the  limita- 
tions or  prohibitions  of  the  Constitution,  or  its 
amendments,  specially  applicable  to  the  national 
government,  have  been  infringed.  And  as  a  last 
and  ultimate  manifestation  of  judicial  power,  the 
courts  may  decide  whether  the  subject  of  legislation 
by  Congress  has  any  relation  to  commerce. 


38  REGULATION    OF    COMMERCE 

Chapter         But  to  State  legislation,  the  federal  courts  sus- 
' tain  a  somewhat  different  relation.      The  grant  of 


At^tkude  of  power  to  Congress  over  interstate  and  foreign  com- 
state  k^s-    nierce  is  a  limitation  on  the  powers  of  the  States  to 
lation.         legislate  with  respect  thereto,  and  the  duty  rests 
upon  the  courts  to  see  that  such  commerce  is  kept 
free  from  burdensome  State  regulation;  and  in  so 
doing  it  occasionally  becomes  necessary  to  define  the 
term,  and  this  the  courts  freely  do.     It  will  be  found,, 
perhaps,  that  most  of  the  judicial  definitions  which 
have  been  given  have  been  occasioned  by  the  neces- 
sity of  deciding  whether  particular  State  statutes 
had  or  had  not  reference  to  the  subject  of  commerce. 
Judicial  in-         *^  If  a  particular  article  is  not  the  subject  of  com- 
JxJiXdedby  merce,  the  determination  of  Congress  that  it  is  can- 

federal  .  ,,.,..,.  .,, 

deSion^  ^^^  ^^  ^^  conclusive  as  to  exclude  judicial  inquiry," 
said  Chief  Justice  Fuller,  in  his  dissenting  opinion 
in  the  Lottery  Case,^  but  the  decision  of  that  case, 
holding  that  a  lottery  ticket  is  a  subject  of  com- 
merce, shows  how  nearly  the  court  feels  bound  by  a 
federal  statutory  definition. 

It  is  instructive  to  compare  this  remark  with  an 
utterance  of  the  same  learned  chief  justice  in  a 
previous  case,  which  has  apparently,  but  not  in 
reality,  a  contrary  significance.  In  Leisy  v.  Hardin,^ 
it  was  held  that  a  State  statute  prohibiting  the  sale 
of  imported  liquors  was  a  burden  upon  commerce, 
and  in  the  course  of  the  opinion,  in  the  part  having 
special  reference  to  the  recognition  of  intoxicating 
liquor  by  federal  legislation  as  a  proper  subject  of 
commerce,  the  chief  justice  said:  *^  Whatever  our 
individual  views  may  be  as  to  the  deleterious  or 
dangerous  qualities  of  particular  articles,  we  cannot 

2  (1903)    188  U.  S.  321. 
»  (1890)   135  U.  S.  100. 


REGULATION    OF    COMMEliCi:  39 

hold  that  any  articles  which  Congress  recognizes  as    Ch&pbm 
subjects  of  interstate  commerce  are  not  such,  or  that 
whatever  are  thus  recognized  can  be  controlled  by- 
State  laws  amounting  to  regulations,  while  they  re- 
tain that  character. ' ' 

If  it  could  be  supposed  that  Congress  would  pass  weight 
a  law  on  a  subject  which,  under  any  accepted  defini-  |^^"^;^ 
tion  or  meaning  of  the  word,  had  no  relation  to  com- 
merce, it  would  undoubtedly  be  the  duty  of  the 
courts  to  declare  it  invalid,  if  it  depended  for  its 
validity  upon  the  power  given  to  Congress  to  regu- 
late commerce.  But  that  the  subject-matter  of  an 
Act  of  Congress  would  have  to  reach  this  stage  of 
certainty  of  nonrelationship  to  commerce  to  require 
such  an  extreme  exercise  of  judicial  power,  is  evi- 
dent from  the  observation  of  Mr.  Justice  Miller,  in 
the  Trade-Mark  Cases, "^  that  ^^  the  question,  there- 
fore, whether  the  trade-mark  bears  such  a  relation 
to  commerce  in  general  terms  as  to  bring  it  within 
congressional  control,  when  used  or  applied  to  the 
classes  of  commerce  which  fall  within  that  control, 
is  one  which,  in  the  present  case,  we  propose  to  leave 
undecided.  We  adopt  this  course  because  when  this 
court  is  called  on  in  the  course  of  the  administration  - 
of  the  law  to  consider  whether  an  Act  of  Congress, 
or  of  any  other  department  of  the  government,  is 
within  the  constitutional  authority  of  that  depart- 
ment, a  due  respect  for  a  co-ordinate  branch  of 
the  government  requires  that  we  shall  decide  that  it 
lias  transcended  its  powers  only  when  that  is  so^ 
plain  that  we  cannot  avoid  the  duty.'' 

*(1879)   100  U.  S.  82. 


CHAPTEE  n. 

THE  GENERAL  POWER  OF  CONGRESS. 

THE   POWER   OF    CONGRESS    OVER   INTERSTATE    AND 

FOREIGN    COMMERCE   GENERALLY. 
* 

Chapter    'T^HE  power  of  Congress  over  interstate  and  for- 

'         1       eign  commerce  is  coextensive  with  the  subject.* 

Plenary  Its  Dowcr  ovcr  that  commerce  is  as  full  and 

power  of  -^ 

Congress,  eomplctc  as  is  the  power  of  any  State  over  its  domes- 
tic commerce.^  Chief  Justice  Marshall  said :  *  *  If , 
as  has  always  been  understood,  the  sovereignty  of 
Congress,  though  limited  to  specified  objects,  is  plen- 
ary as  to  those  objects,  the  power  over  commerce 
with  foreign  nations,  and  among  the  several  States, 
is  vested  in  Congress  as  absolutely  as  it  would  be  in 
a  single  government  having  in  its  constitution  the 
same  restrictions  on  the  exercise  of  the  power  as  are 
found  in  the  Constitution  of  the  United  States."^ 
Though  the  power  does  not  comprehend  the  purely 
internal  domestic  commerce  of  a  State,*  it  reaches 
and  may  be  exercised  within  the  territorial  jurisdic- 
tion of  the  several  States ;  it  is  not  embarrassed  by 
State  lines.^ 

iKidd  V.  Pearson,  (1888)   128  U.  S.  1. 

2  Northern  Securities  Co.  v.  U.  S.,  (1904)    193  U.  S.  197. 

» Gibbons  v.  Ogden,  (1824)   9  Wheat.  (U.  S.)   1. 

^Addyston  Pipe,  etc.,  Co.  v,  U.  S.,  (1899)  176  U.  S.  211;  Trade- 
Mark  Cases,  (1879)   100  U.  S.  82. 

BQuy  V.  Baltimore,  (1879)  100  U.  S.  434;  Pensacola  Tel.  Co.  9, 
Western  Union  Tel.  Co.,  (1877)  96  U.  S.  1. 


BBGULATION    OF    COMMEBCE  41 

Commerce,  whether  carried  on  by  individuals  or    ChaDter 
corporations,  is  equally  free  from  State  regulation  ' 

or  burden.     In  the  case  of  Paul  v.  Virginia,^  it  was  carried  on 

*^  '  by  corpora- 

urged  in  the  argument  that  the  power  conferred  on  divldiSs!"' 
Congress  * '  to  regulate  commerce  ' '  does  not  exclude 
the  commerce  carried  on  by  corporations,  and  the 
court,  through  Mr.  Justice  Field,  said :  * '  It  is  un- 
doubtedly true,  as  stated  by  counsel,  that  the  power 
conferred  upon  Congress  to  regulate  commerce  in- 
cludes as  well  commerce  carried  on  by  cmrporations 
as  commerce  carried  on  by  individualsV^t  the  time 
of  the  formation  of  the  Constitution  a  large  part  of 
the  commerce  of  the  world  was  carried  on  by  cor- 
porations. The  East  India  Company,  the  Hudson's 
Bay  Company,  the  Hamburgh  Company,  the  Levant 
Company,  and  the  Virginia  Company,  may  be  named 
among  the  many  corporations  then  in  existence 
which  acquired,  from  the  extent  of  their  operations, 
celebrity  throughout  the  commercial  world.  This 
state  of  facts  forbids  the  supposition  that  it  was 
intended  in  the  grant  of  power  to  Congress  to  ex-  - 
elude  from  its  control  the  commerce  of  corporations^/^ 
The  language  of  the  grant  makes  no  reference  to  the 
instrumentalities  by  which  commerce  may  be  carried 
on;  it  is  general,  and  includes  alike  commerce  by 
individuals,  partnerships,  associations,  and  corpora- 
tions. ' '  The  right,  though  evidently  never  seriously 
questioned,  was  incidentally  referred  to  in  the  cases 
of  the  Gloucester  Ferry  Co,  v.  Pennsylvania,'^  and 
Crutcher  v.  Kentucky,^  and  in  the  latter  case  the 
court  said  that  the  accession  of  mere  corporate  facili- 
ties, as  a  matter  of  convenience  in  carrying  on  their 

•  (1868)  8  Wall.  (U.  S.)   168. 
7  (1885)    114  U.  S.  196. 
«  (1891)   141  U.  S.  47. 


42 


EEGULATION    OF    COMMERCE 


Prescribe 
rules  by 
which 
commerce 
gOTerned. 


Chapter    business,  cannot  have  tlie  effect  of  depriving  citi- 
'. zens  of  the  United  States  of  such  right,  unless  Con- 
gress should  see  fit  to  interpose  some  contrary  regu- 
lation on  the  subject. 

Congress  may  prescribe  the  rules  by  which  com- 
merce shall  be  governed.  Notable  instances  of  this 
are  the  rules  promulgated  in  conformity  with  which 
navigation  must  be  carried  on;  and  with  regard  to 
certain  commercial  transactions  and  contracts  Con- 
gress has  declared  the  rule  of  free  competition.^ 
The  application  of  these  rules  has  been  noticed  in 
different  parts  of  this  work. 

In  this  connection,  however,  the  case  of  Northern 
Securities  Co.  v.  U.  S}  may  be  especially  noticed. 
The  corporation  was  proceeded  against  by  a  bill  in 
equity  to  enforce  the  provisions  of  the  Sherman 
Anti-Trust  Law.  It  was  organized  by  the  stock- 
holders of  two  transcontinental  and  competing  rail- 
road companies  as  a  holding  corporation  to  take  the 
shares  held  by  stockholders  of  the  constituent  com- 
panies in  exchange  for  its  own  shares  upon  an 
agreed  basis  of  value,  and,  pursuant  to  that  plan,  it 
became  the  majority  owner  of  the  stock  of  the  com- 
peting companies.  Such  an  arrangement  was  held 
to  be  an  illegal  combination  in  restraint  of  inter- 
state commerce,  within  the  prohibition  of  the  law, 
and  the  holding  corporation  was  restrained  from 


Northern 
Securities 
:ase. 


»The  Sherman  Act,  commonly  called  the  Anti-Trust  Act,  is  the 
Act  of  July  2,  1890,  c.  647,  7  Fed.  Stat.  Annot.  336.  This  statute 
has  been  construed  in  many  cases,  a  few  of  which  have  passed  upom 
the  power  of  Congress  to  adopt  such  a  rule  as  applying  to  the  par- 
ticular contracts.  As  these  matters  have  been  referred  to  under  the 
different  subjects  of  regulation,  the  reader  should  consult  the  index, 
wherein  the  questions  raised  under  the  statute  have  been  grouped 
for  convenience  of  reference  under  the  division  Anti-Trttst  Law. 

1  (1904)   193  U.  S.  197. 


REGULATION    OF    COMMERCE  43 

voting  such  stock  or  exercising  any  control  over  the    Chapter 
constituent  companies.     The  case  was  one  of  far-  ' 

reaching  importance  concerning  the  extent  of  the 
power  of  Congress  to  regulate  interstate  commerce. 
Several  of  the  suggestions  of  Mr.  Justice  Harlan, 
who  wrote  the  opinion  of  the  court,  are  made  the 
basis  of  observations  in  other  parts  of  this  work,^ 
but  his  summary  of  the  propositions,  deducible 
from  the  decisions  of  the  court  in  previous  cases 
arising  under  the  statute,  may  here  be  noted.  Those 
propositions,  in  the  language  of  the  learned  justice, 
are:     .     .     . 

That   the   act   is  not  limited   to    restraints   of  ^/'gfj^^;* 
interstate   and  international  trade   or  com-  Law.^*^"" 
merce  that  are  unreasonable  in  their  nature, 
but  embraces  all  direct  restraints  imposed  by 
any    combination,    conspiracy    or    monopoly 
upon  such  trade  or  commerce ; 
That  railroad  carriers  engaged  in  interstate  or 
international  trade  or  commerce  are  embraced 
by  the  act;     .     .     . 
That  Congress  has  the  power  to  establish  rules 
by  which  interstate  and  international  com- 
merce shall  be  governed,  and,  by  the  Anti- 
Trust  Act,  has  prescribed  the  rule  of  free 
competition   among  those   engaged   in   such 
commerce ; 
That   every   combination   or   conspiracy   which 
would  extinguish  competition  between  other- 
wise competing  railroads  engaged  in  inter- 
state trade  or  commerce,  and  which  would  in 
that  way  restrain  such  trade  or  commerce,  is 
made  illegal  by  the  act; 
That  the  natural  effect  of  competition  is  to  in- 

2  See  especially  infra,  p.  175. 


44 


EEGULATION   OF   COMMEECE 


Chapter 
II. 


crease  commerce,  and  an  agreement  whose 
direct  effect  is  to  prevent  this  play  of  com- 
petition restrains  instead  of  promotes  trade 
and  commerce; 

That  to  vitiate  a  combination,  such  as  the  Act 
of  Congress  condemns,  it  need  not  be  shown 
that  the  combination,  in  fact,  results  or  will 
result  in  a  total  suppression  of  trade  or  in  a 
complete  monopoly,  but  it  is  only  essential  to 
show  that  by  its  necessary  operation  it  tends 
to  restrain  interstate  er  international  trade 
or  commerce  or  tends  to  create  a  monopoly 
in  such  trade  or  commerce  and  to  deprive  the 
public  of  the  advantages  that  flow  from  free 
competition ; 

That  the  constitutional  guaranty  of  liberty  of 
contract  does  not  prevent  Congress  from  pre- 
scribing the  rule  of  free  competition  for  those 
engaged  in  interstate  and  international  com- 
merce; and. 

That  under  its  power  to  regulate  commerce 
among  the  several  States  and  with  foreign 
nations.  Congress  had  authority  to  enact  the 
statute  in  question.^ 


Upon 
exercise  of 
eminent 
domain 
|K)wer. 


SUBJECT  TO  CONSTITUTIONAL  LIMITATIONS. 

While  this  power  is  complete  in  itself,  it  is 
limited,  as  are  all  the  powers  of  the  national  govern- 
ment, by  the  prohibitions  and  limitations  of  the 
I  Constitution  and  its  amendments.  The  power 
I  *^  acknowledges  no  limitations,  other  than  are  pre- 

8  The  propositions  omitted  from  the  quotation  of  the  summary 
have  especial  reference  to  the  application  of  the  Sherman  Act  to 
the  interstate  business  of  manufacturers,  and  are  stated  in  that 
connection.    See  infra,  p.  114. 


BEGTTLATION   OF   COMMERCE  45 

scribed  in  the  Constitution."  *    If,  in  exercising  con-    Chapter 
trol  of  commerce,  Congress  deems  it  necessary  to  ' 

take  private  property,  then  it  must  proceed  subject 
to  the  limitations  imposed  by  the  Fifth  Amendment, 
and  can  take  only  on  payment  of  just  compensation. 
The  exercise  of  the  power  of  eminent  domain,  as  an 
aid  to  the  power  to  regulate  commerce,  is  discussed 
hereafter.^ 

Taxation  on  Exports  from  a  State. 

A  specific  prohibition  on  the  power  of  Congress  as  limitmg 
is  found  in  the  clause  of  Article  I,  section  9,  of  the  regulate 

'  '  ^        commerce. 

Constitution  declaring  that  '^  no  tax  shall  be  laid 
on  articles  exported  from  any  State."  It  may 
perhaps  be  said  that  this  clause  is  a  limitation  on 
the  taxing  power  and  not  on  the  power  to  regulate 
commerce.  With  its  operation  as  a  limitation  on 
the  taxing  power,  we  have  no  concern.  It  is  proper 
here  to  say,  however,  that  the  word  *^  export  "  ap- 
plies only  to  goods  exported  to  a  foreign  country, 
and  that  the  prohibition  has  no  reference  to  general 
taxes  laid  on  all  property  alike  and  not  levied  on 
goods  in  course  of  exportation,  nor  because  of  their 
intended  exportation ;  ^  and  the  right  of  Congress  to 
tax  goods  has  been  affirmed  even  in  the  case  of  goods 
manufactured  under  contract  for  exportation,  and 
in  fact  duly  exported.'^ 

Preference  to  Ports  of  One  State, 

Another  specific  prohibition  is  the  clause  con- 
tained in  Article  I,  section  9,  declaring  that  ''  no 

*^Per   Chief   Justice  Marshall,   in   Gibbons  v.  Ogden,    (1824)    9 
Wheat.  (U.  S.)   1. 

*  See  infra,  p.  59. 

•  Turpin  v.  Burgess,  (1886)   117  U.  S.  504. 
7  Cornell  v.  Coyne,  (1904)  192  U.  S.  418. 


46  REGULATION    OP   COMMERCE 

Chapter    preference  shall  be  given  by  any  regulation  of  com- 

'       merce  or  revenue  to  the  ports  of  one  State  over  those 

of  another ;  nor  shall  vessels  bound  to,  or  from,  one 

State  be  obliged  to  enter,  clear,  or  pay  duties  in 

Restriction    auothcr. "      This  clause  is  a  restriction  upon  the 

upon  fed- 

eJnm^nt'  powcrs  of  thc  federal  government,  and  does  not 
affect  the  States  in  the  regulation  of  their  domestic 
affairs.^  The  little  that  has  been  said,  judicially, 
respecting  this  clause  will  be  found  discussed  in  the 
part  of  this  work  relating  to  the  power  of  Congress 
to  regulate  rates  for  interstate  transportation,^  and 
respecting  the  effect  of  the  action  of  Congress  in 
permitting  the  several  States  to  adopt  pilotage 
regulations.^ 

MAY  ADOPT  ANY  APPROPRIATE  MEANS. 

To  carry  out  any  scheme  for  the  promotion  or 

regulation  of  commerce.  Congress  may  make  use  of 

any  appropriate  means.    A  corporate  franchise  may 

be  granted  directly  by  Congress,^  or  a  corporation 

By  creation  crcatcd  by  a  State  may  be  made  use  of  as  a  fit  instru- 

or  use  of 

uomT'^*'      nxentality  to  accomplish  the  federal  purpose.^ 

The  Sherman  Anti-Trust  Act  provides  that  *  ^  the 
several  Circuit  Courts  of  the  United  States  are 
hereby  invested  with  jurisdiction  to  prevent  and  re- 

8  Johnson  v.  Chicago,  etc.,  Elevator  Co.,  (1886)  119  U.  S.  388; 
Morgan's  Steamship  Co.  v.  Louisiana  Board  of  Health,  (1886)  118 
U.  S.  455;  Munn  V.  Illinois,  (1876)  94  U.  S.  113. 

»  See  infra,  p.  176. 

1  See  infra,  p.  212. 

2Luxton  V.  North  River  Bridge  Co.,  (1894)  153  U.  S.  525;  Cali- 
fornia V.  Central  Pac.  R.  Co.,  (1888)   127  U.  S.  1. 

3  Cherokee  Nation  v.  Southern  Kansas  R.  Co.,  (1890)  135  U.  S. 
641. 

"The  power  of  creating  a  corporation,  though  appertaining  to 
sovereignty,  is  not,  like  the  power  of  making  war,  or  levying  taxes, 
or  of  regulating  commerce,   a  great   substantive  and   independent 


REGULATION   OP   COMMERCE  47 

strain  violations  of  this  Act. ' '  *     Mr.  Justice  Peck-    Chapter 
ham,  speaking  for  the  federal  Supreme  Court,  said :  ' 

*  *  It  is  also  argued  that  the  United  States  have  no  Remedy  by 

*="  injunction. 

standing  in  court  to  maintain  this  bill;  that  they 
have  no  pecuniary  interest  in  the  result  of  the  litiga- 
tion or  in  the  question  to  be  decided  by  the  court. 
We  think  that  the  fourth  section  of  the  Act  invests 
the  government  with  full  power  and  authority  to 
bring  such  an  action  as  this,  and  if  the  facts  be 
proved,  an  injunction  should  issue.  Congress 
having  the  control  of  interstate  commerce,  has  also 
the  duty  of  protecting  it,  and  it  is  entirely  competent 
for  that  body  to  give  the  remedy  by  injunction  as 
more  efficient  than  any  other  civil  remedy. '  *  ^ 

For  the  protection  of  commerce  on  the  high  seas  Enactment 
Congress  is  given  power,  by  a  clause  in  Article  I,  faws!:"^'"* 
section  8,  of  the  Constitution, '  ^  to  define  and  punish 
piracies  and  felonies  committed  on  the  high  seas, 
and  offenses  against  the  law  of  nations.''  But  the 
power  of  Congress  is  not  limited  by  that  clause. 
Congress  may  punish  all  grades  of  offenses,  com- 
mitted on  the  high  seas  or  on  any  waters,  under  its 
power  to  regulate  commerce.^  That  Congress  has 
power  to  adopt  and  provide  for  the  enforcement  of 

power,  which  cannot  be  implied  as  incidental  to  other  powers,  or 
used  as  a  means  of  executing  them.  It  is  never  the  end  for  which 
other  powers  are  exercised,  but  a  means  by  which  other  objects  are 
accomplished."  Per  Chief  Justice  Marshall,  in  M'Culloch  v.  Mary- 
land, (1819)   4  Wheat.  (U.  S.)   316. 

4  Act  of  July  2,  1890,  c.  647,  §  4,  7  Fed.  Stat.  Annot.  344. 

5U.  S.  V.  Trans-Missouri  Freight  Assoc,  (1897)  166  U.  S.  290. 
See  also  In  re  Debs,  (1895)  158  U.  S.  564. 

6U.  S.  r.  Coombs,  (1838)  12  Pet.  (U.  S.)  72;  Ex  p.  Byers, 
(1887)  32  Fed.  Rep.  404;  Charge  to  Grand  Jury,  (1861)  2  Sprague 
(U.  S.)  279,  30  Fed.  Cas.  No.  18,256;  U.  S.  v.  Cole,  (1853)  5 
McLean  (U.  S.)  513,  25  Fed.  Cas.  No.  14,832;  The  Ulysses,  (1800) 
Brun.  Col.  Cas.  (U.  S.)  529,  24  Fed.  Cas.  No.  14330. 


48  REGULATION   OF   COMMERCE 

Chapter  criminal  laws,  for  the  purpose  of  insuring  compli- 
ance  with  regulations  it  may  constitutionally  pre- 
scribe, was  stated  by  Mr.  Justice  Field,  in  U.  8,  v, 
Fox^  wherein  he  said:  **Any  act  committed  with 
a  view  of  evading  the  legislation  of  Congress  passed 
in  the  execution  of  any  of  its  powers,  or  of  fraudu- 
lently securing  the  benefit  of  such  legislation,  may 
properly  be  made  an  offense  against  the  United 
States.  But  an  act  committed  within  a  State, 
whether  for  a  good  or  a  bad  purpose,  or  whether 
with  an  honest  or  a  criminal  intent,  cannot  be  made 
an  offense  against  the  United  States,  unless  it  have 
some  relation  to  the  execution  of  a  power  of  Con- 
gress, or  to  some  matter  within  the  jurisdiction  of 
the  United  States.  An  act  not  having  any  such 
relation  is  one  in  respect  to  which  the  State  can 
alone  legislate." 

WHAT    CONSTITUTES    THE    POWER    TO    REGULATE. 

The  power  to  *'  regulate,"  contained  in  ordinary 
statutes  and  ordinances,  may  well  be  limited  to  the 
power  to  exercise  some  sort  of  control  short  of  the 
power  to  prohibit,  but  the  construction  of  such  a 
term,  as  used  in  a  constitution  partitioning  the 
powers  of  federal  and  State  sovereignty,  cannot  be 
Division  of  so  simply  determined.  By  reason  of  the  grant  of 
powersf"  power  to  Cougrcss  to  regulate  interstate  and  foreign 
commerce,  the  States  cannot  adopt  any  regulations 
imposing  a  burden  upon,  much  less  prohibiting,  such 
commerce.  And  if  the  power  of  Congress  to  regu- 
late does  not  include  in  some  measure  the  power  to 
prohibit,  there  is  an  abeyance  of  a  high  govern- 
mental function  without  a  constitutional  prohibition. 

7  (1877)  95  U.  S.  670. 


BEGTJLATION   OF   COMMERCE  49 

By  the  adoption  of  the  Constitution,  with  its  grants    Chapter 
of  power  to  the  national  government,  its  limitations  ' 

on  the  powers  of  the  national  and  State  govern- 
ments, and  its  reservation  to  the  States  of  all  powers 
not  conferred  upon  the  national  government,  it  can- 
not be,  without  specific  prohibition,  that  any  of  the 
attributes  of  sovereignty  could  have  been  dropped 
or  suspended. 

Whether  there  is  any  difference  in  this  respect  ^^f^^'*"**™ 
between  the  power  to  prohibit  foreign  commerce  and  counmes. 
interstate  commerce,  it  is  settled  that  a  federal 
statute  which  restrains  the  introduction  of  particu- 
lar goods  into  the  United  States  from  foreign 
countries,  from  considerations  of  public  policy,  is 
within  the  power  of  Congress  to  regulate  commerce 
with  foreign  nations,  and  that  such  a  statute 
does  not  violate  the  due  process  clause  of  the 
Constitution.^ 

We  are  not  without  authority,  however,  that  the  ^^\^}^^/, 
power  to  regulate  interstate  commerce  does  include,  «»e°po^er 
to  some  extent,  the  power  to  prohibit  such  commerce. 
Chief  Justice  Marshall  early  said  that  this  power  to 
regulate,  ^ '  like  all  others  vested  in  Congress,  is  com- 
plete in  itself,  may  be  exercised  to  its  utmost  extent, 
and  acknowledges  no  limitations,  other  than  are  pre- 
scribed in  the  Constitution,"^  and  Mr.  Justice 
Swayne  said  that  for  the  purpose  of  exercising  this 
power  '*  Congress  possesses  all  the  powers  which 
existed  in  the  States  before  the  adoption  of  the 
National  Constitution,  and  which  have  always  ex- 
isted in  the  Parliament  in  England.  "^ 

«Buttfield  V.  Stranahan,  (1904)  192  U.  S.  470,  holding  the  Act 
of  Congress  of  March  2,  1897,  c.  358,  3  Fed.  Stat.  Annot.  138,  en- 
titled "  An  Act  to  prevent  the  importation  of  impure  and  unwhole- 
some tea,"  to  be  valid. 

9  Gibbons  v.  Ogden,  (1824)  9  Wheat.  (U.  S.)  1. 

1  Oilman  v.  Philadelphia,  (1865)  3  Wall.  (U.  S.)  713. 


50  REGULATION    OF    COMMERCE 

caiapter         The  Act  of  Congress  of  August  8,  1890,  known 
'       as  the  Wilson  Act,  subjecting  intoxicating  liquors 


liSsS^Sns  ^^^^  ^^  original  packages  to  the  operation  of  the 
j^rohibi-  laws  of  the  State  enacted  in  the  exercise  of  its  police 
powers,  is  an  instance  of  federal  prohibitive  legis- 
lation in  a  modified  form.^  The  Sherman  Anti- 
Trust  Act  ^  is  also  an  illustration  of  the  proposition 
that  regulation  may  take  the  form  of  prohibition. 
The  statute  prescribes  that  free  competition  shall  be 
the  rule  by  which  interstate  commerce  shall  be  gov- 
erned. To  accomplish  that  object.  Congress  de- 
clared certain  contracts  to  be  illegal,  and,  in  effect, 
prohibited  the  doing  of  certain  things,  and  its  pro- 
hibitory clauses  have  been  sustained  as  valid 
under  the  power  of  Congress  to  regulate  interstate 
commerce.^ 
Inhibiting  And  in  the  Lottery  Case  ^  it  was  held,  not  only 
SS^Sf'^fot-  that  lottery  tickets  are  subjects  of  commerce,  but 
that,  under  its  power  to  regulate  commerce  among 
the  several  States,  Congress  —  subject  to  the  limita- 
tions imposed  by  the  Constitution  upon  the  exercise 
of  the  powers  granted  —  has  plenary  authority  over 
interstate  commerce,  and  may  prohibit  the  carriage 
of  such  tickets  from  State  to  State.  To  the  objec- 
tion that  if  Congress  may  exclude  lottery  tickets 
from  interstate  commerce,  that  principle  leads  neces- 
sarily to  the  conclusion  that  Congress  may  arbi- 
trarily exclude  from  commerce  among  the  States 
any  article,  commodity,  or  thing,  of  whatever  kind 

2  The  statute  is  fully  discussed  in  another  part  of  this  work. 
See  infra,  p.  143. 

3  Act  of  July  2,  1890,  c.  647,  7  Fed.  Stat.  Annot.  336. 
4Addyston  Pipe,  etc.,  Co.  v.  U.  S.,   (1899)    175  U.  S.  211;  U.  S. 

.M>.  Joint  Traffic  Assoc,   (1898)    171  U.  S.  505;  U.  S.  v.  Trans-Mis- 
souri Freight  Assoc,  (1897)   166  U.  S.  290. 
8  (1903)   188  U.  S.  321. 


REGULATION   OF   COMMERCE  51 

or  nature,  or  however  useful  or  valuable,  which  it    Chapter 
may  choose,  no  matter  with  what  motive,  to  declare  ' 

shall  not  be  carried  from  one  State  to  another,  Mr. 
Justice  Harlan  said:  **  It  will  be  time  enough  to 
consider  the  constitutionality  of  such  legislation 
when  we  must  do  so.  The  present  case  does  not 
require  the  court  to  declare  the  full  extent  of  the 
power  that  Congress  may  exercise  in  the  regulation 
of  commerce  among  the  States.  We  may,  however, 
repeat,  in  this  connection,  what  the  court  has  hereto- 
fore said,  that  the  power  of  Congress  to  regulate 
commerce  among  the  States,  although  plenary,  can- 
not be  deemed  arbitrary,  since  it  is  subject  to  such 
limitations  or  restrictions  as  are  prescribed  by  the 
Constitution.  This  power,  therefore,  may  not  be 
exercised  so  as  to  infringe  rights  secured  or  pro- 
tected by  that  instrument." 

The  Power  to  Prohibit  as  an  Exertion  of  a  Police 

Power. 

It  is  evident  from  what  has  been  said  that  the 
question  to  what  extent  the  power  to  regulate  in- 
cludes the  power  to  prohibit  interstate  commerce 
cannot  be  adequately  discussed  without  also  con- 
sidering the  existence  and  scope  of  a  power  in  the 
nature  of  a  federal  police.^ 

Chief  Justice  Fuller,  writing  the  opinion  of  the  sute  poucc 
court  in  In  re  Rahrer,'^   said:      **  The  power  of  ^°Jfi^f;^ 
the  State  to  impose  restraints  and  burdens  upon 
persons  and  property  in  conservation  and  promotion 
of  the  public  health,  good  order,  and  prosperity,  is 
a  power  originally  and  always  belonging  to  the 

•  See  infra,  p.  116. 

7  (1891)   140  U.  S.  545. 


^     ^    OFTHt 

f  UNIVERSITY 
V  ^..  .?!_ 


52  EEGULATION    OF   COMMERCE 

Chapter  States,  not  surrendered  by  them  to  the  general  gov- 
'  emment  nor  directly  restrained  by  the  Constitution 
of  the  United  States,  and  essentially  exclusive." 
And  Mr.  Justice  Brewer  has  observed:  **  It  is  un- 
doubtedly true  that  the  police  power  is  not  by  the 
Constitution  delegated  to  Congress.  It  may,  there- 
fore, under  Article  Ten  of  the  Amendments,  be  re- 
garded as  reserved  to  the  States  respectively,  or  to 
the  pepple. ' '  ^  In  making  these  remarks,  the  learned 
justices  must  have  had  reference  to  what  have 
hitherto  been  understood  as  strictly  police  or  local 
regulations.  But,  inasmuch  as  even  the  State  police 
power  cannot  be  exerted  so  as  to  impede  the  opera- 
tions of  that  commerce  which  is  within  the  exclusive 
control  of  Congress,  as  is  hereafter  shown,^  some  of 
the  recent  instances  of  the  exercise  of  federal  power 
indicate  the  existence  of  a  power  over  interstate  and 
foreign  transactions  which  is  similar  to  or  parallel 
with  that  which  is  exerted  by  the  States  with  respect 
to  their  domestic  or  local  affairs  and  which  is  under- 
stood as  the  State  police  power. 

Power pien-        Thcrc  has  bccn  occasion,  heretofore,  to  show  that 

ary  but  '  ' 

?onstitu-°  the  power  to  regulate  commerce,  while  plenary  and 
uSrois.^'""'*  complete  in  itself,  is  subject  to  all  the  limitations 
upon  the  federal  power  prescribed  by  the  Constitu- 
tion. It  may  well  be  doubted  whether  Congress  has 
the  absolute  and  unlimited  power  to  prohibit  the 
transportation,  from  one  State  to  another,  of  articles 
respecting  the  use  of  which  no  question  of  public 
health,  public  morals,  public  safety,  or  public  con- 
venience can  arise.  Prohibiting  absolutely  the 
transportation  of  cotton  from  one  State  to  another 

•  In  the  dissenting  opinion  in  Austin  v.  Tennessee,   (1900)    179 
U.  S.  343. 

«  See  infra,  p.  87. 


BEGULATION   OF   COMMEECB  53 


would  seem  to  result  in  depriving  the  cotton  mill    Chapter 
owners  of  Massachusetts,  for  instance,  of  their  prop-  ' 

erty  rights  in  their  business  of  manufacturing  cot- 
ton goods,  by  preventing  them  from  obtaining  the 
necessary  raw  material,  in  violation  of  rights  pro- 
tected by  the  Fifth  Amendment ;  and  by  arbitrarily 
prohibiting  the  transportation  of  wheat  from  one 
State  to  another,  the  wheat  growers  of  the  West 
would,  in  effect,  be  deprived  of  a  valuable  property 
right  in  their  crops  —  the  right  to  find  an  open 
market. 

But  the  Lottery  Case,  supra,  points  to  a  coinci-  JJ|gJ*J^b* 
dence  of  a  federal  power  as  respects  interstate  considered. 
transactions,  with  that  of  the  States  as  respects  local 
transactions.  In  that  case,  the  existence  of  any 
provision  of  the  Constitution  limiting  the  power  of 
Congress  to  prohibit  the  interstate  transportation 
of  lottery  tickets  was  debated,  and  it  was  found  that 
the  clause  of  the  Fifth  Amendment  providing  that  • 
no  person  shall  be  deprived  of  his  liberty  without 
due  process  of  law  —  the  liberty  to  contract  —  was 
not  violated.  Mr.  Justice  Harlan,  writing  the  opin- 
ion of  the  court,  said  that,  in  determining  whether 
regulation  may  not  under  some  circumstances  prop- 
erly take  the  form  or  have  the  effect  of  prohibition, 
the  nature  of  the  interstate  traffic  which  it  is  sought 
to  suppress  cannot  be  overlooked,  and  added:  **  If 
a  State,  when  considering  legislation  for  the  sup- 
pression of  lotteries  within  its  own  limits,  may 
properly  take  into  view  the  evils  that  inhere  in  the 
raising  of  money,  in  that  mode,  why  may  not  Con- 
gress, invested  with  the  power  to  regulate  commerce 
among  the  several  States,  provide  that  such  com- 
merce shall  not  be  polluted  by  the  carrying  of  lot- 


54  REGULATION   OP   COMMERCE 

Chapter  tery  tickets  from  one  State  to  another!''^  In- 
'  stances  of  the  exercise  by  Congress  of  such  a  power 
may  be  found  in  the  food  laws,  and  also  in  the  statute 
enacted  to  prevent  the  carrying  of  obscene  literature 
and  articles  intended  for  indecent  and  immoral  use 
from  one  State  or  Territory  into  another  State  or 
Territory.2 

txercise  oA       The  combiucd  powers  of  the  federal  and  respec- 

combined     I     ^  ^  ^ 

Stote*^  J  ^^^^  State  governments  may  probably  be  exerted  for 
powers.  /  ^jj^  purpose  of  prohibiting  absolutely  the  transpor- 
tation into  certain  States  of  articles  or  commodities 
which  are  under  the  ban  of  public  opinion  in  those 
States.  If  this  can  be  effected,  federal  regard 
would  be  shown  for  the  varying  conditions  of  public 
opinion  in  the  different  States  with  respect  to  such 
matters  as  are  generally  confessed  to  be  within  the 
State  police  power  and  to  be  properly  the  subjects 
of  regulation.^  The  Act  of  August  8, 1890,  operates 
to  some  extent  in  this  direction.  The  statute  de- 
clares that  certain  articles  transported  into  any 
State  shall  be  subject  to  the  operation  and  effect  of 
the  laws  of  such  State  enacted  in  the  exercise  of  its 
police  powers.  As  a  result  of  the  strict  construc- 
tion given  to  the  statute,  as  is  hereafter  shown,*  the 

1  Lottery  Case,  (1903)   188  U.  S.  321. 

2  Act  of  February  8,  1897,  c.  172,  29  Stat.  L.  512,  5  Fed.  Stat. 
Annot.  381. 

The  statute  was  held  to  be  valid  in  U.  S.  v.  Popper,  (1899)  98 
Fed.  Rep.  423. 

3 "  If  [Congress],  which  represents  all  the  States,  shall  be  of 
opinion  that  the  use  of  any  particular  article  is  freighted  with  injury 
to  public  health,  morals,  or  safety,  it  will  absolutely  prohibit  inter- 
state commerce  therein,  or  if  in  its  judgment  .  .  .  there  is 
in  certain  localities  such  a  feeling  in  reference  to  any  article  that 
commerce  therein  may  wisely  be  regulated  by  the  State,  it  will 
provide  therefor."  Per  Mr.  Justice  Brewer,  in  a  dissenting  opinion 
in  Austin  v.  Tennessee,  (1900)    179  U.  S.  343. 

*  See  infra,  p.  143. 


BEGULATION    OF    COMMERCE  55 

sale  of  such  articles  in  the  original  packages  may  be    ChaDtB»- 

prohibited  by  a  State,  but  the  statute  does  not  per-  

mit  the  prohibition  of  their  importation  from  other 
States  for  the  use  of  the  importer.  To  give  full 
effect  to  the  operation  of  public  opinion  on  such 
matters  in  the  different  States,  it  remains  for  Con- 
gress to  withdraw  the  privilege  of  importing  into  a 
State,  even  for  personal  use,  articles  in  which  the 
laws  of  the  State  prohibit  traffic.  The  adoption  of 
some  such  policy,  if  sustained  by  the  courts,  would 
be  one  step  further  in  the  evolution  of  constitutional 
construction,  and  in  the  direction  of  national  and 
State  comity. 

EXCLUSIVENESS   OF   THE   POWER   OF    CONGRESS. 

Since  the  adoption  of  the  Constitution  the  main  gjjf"5*=*^ 
controversy  has  been  over  the  line  which  divides  the  2nd  sSL- 
powers  of  the  national  and  State  governments.  A 
general  classification  of  national  and  State  powers 
is  contained  in  Ex  p.  McNiel.^  In  that  case  Mr. 
Justice  Swayne,  speaking  for  the  court,  said:  '*  In 
the  complex  system  of  polity  which  prevails  in  this 
country  the  powers  of  government  may  be  divided 
into  four  classes.  [First]  Those  which  belong  ex^ 
clusively  to  the  States.  [Second]  Those  which 
belong  exclusively  to  the  national  government. 
[Third]  Those  which  may  be  exercised  concurrently 
and  independently  by  both.  [Fourth]  Those  which 
may  be  exercised  by  the  States,  but  only  until  Con- 
gress shall  see  fit  to  act  upon  the  subject.  The 
authority  of  the  State  then  retires  and  lies  in  abey- 
ance until  the  occasion  for  its  exercise  shall  recur.  * ' 
These  principles  seem  to  have  been  early  worked 

6  (1871)    13  Wall.   (U.  S.)   236. 


power*. 


56 


REGULATION    OF   COMMERCE 


lUustra 
tions  of 
classific 
tion. 


ChaDter  ont  though  not  formally  stated  before  this  case,  so 
'  that  it  is  perhaps  hardly  correct  to  say  that  the 
controversies  have  been  over  the  line  which  divides 
national  and  State  powers,  but  rather  to  which  of 
these  classes  of  powers  any  particular  subject 
belongs. 

As  illustrating  the  principles  stated,  it  may  be 
said  that  to  the  first  class  belong  all  the  powers  not 
granted  to  the  national  government  by  the  Federal 
Constitution,  except  such  as  are  expressly  prohibited 
to  the  States  in  that  instrument ;  as  belonging  to  the 
second  class  may  be  mentioned  the  grant  of  power 
to  Congress  to  establish  an  uniform  rule  of  naturali- 
zation ;  under  the  third  class  would  come  the  power 
of  taxation,  which  may  be  exercised  generally  by 
both  the  national  and  State  governments,  within  cer- 
tain limits;  and  the  power  given  to  Congress  to 
establish  uniform  laws  on  the  subject  of  bank- 
ruptcies has  been  so  construed  as  well  to  illustrate 
the  fourth  class. 

While  the  power  to  occupy  the  whole  field  of  inter- 
state and  foreign  commerce  is  in  Congress,^  the 
whole  power  to  regulate  commerce  cannot  be  placed 
in  any  one  of  these  classes  to  the  exclusion  of  the 
others,  but  the  nature  of  the  particular  subject  of 
commerce,  and  the  consideration  of  its  interstate 
and  foreign  or  domestic  character,  would  place  it  in 
either  the  first,  second,  or  fourth  class. 

That  the  power  given  to  Congress  by  this  clause 
of  the  Constitution  is  not  exclusive  of  all  State  legis- 
lation was  early  recognized  though  it  was  for  a  long 
time  the  subject  of  judicial  conflict.  The  earliest 
clear  and  comprehensive  statement  of  the  rule  as  to 
the  subjects  upon  which  the  State  cannot  legislate  is 


Classifica- 
tion of 
power  to 
regulate 
commerce. 


« Lottery  Case,  (1903)   188  U.  S.  321. 


REGULATION   OF   COMMERCE  57 

given  in  Cooley  v.  Board  of  TFar^ews/  wherein  the    caiapter 
court,  speaking  through  Mr.  Justice  Curtis,  after  ' 

saying  that  ' '  the  grant  of  commercial  power  to  when  ^^ 
Congress  does  not  contain  any  terms  which  expressly  ex^E^ 
exclude  the  States  from  exercising  an  authority  over 
its  subject-matter;  if  they  are  excluded  it  must  be 
because  the  nature  of  the  power,  thus  granted  to 
Congress,  requires  that  a  similar  authority  should 
not  exist  in  the  States,"  further  said:  *'  The  power 
to  regulate  commerce  embraces  a  vast  field,  contain- 
ing not  only  many  but  exceedingly  various  subjects, 
quite  imlike  in  their  nature;  some  imperatively  de- 
manding a  single  uniform  rule,  operating  equally  on 
the  commerce  of  the  United  States  in  every  port; 
and  some,  like  the  subject  now  in  question  [pilot 
laws],  as  imperatively  demanding  that  diversity 
which  alone  can  meet  the  local  necessities  of  naviga- 
tion. Either  absolutely  to  affirm  or  deny  that  the 
nature  of  this  power  requires  exclusive  legislation 
by  Congress,  is  to  lose  sight  of  the  nature  of  the 
subjects  of  this  power,  and  to  assert  concerning  all 
of  them,  what  is  really  applicable  but  to  a  part. 
Whatever  subjects  of  this  power  are  in  their  nature 
national,  or  admit  only  of  one  uniform  system,  or 
plan  of  regulation,  may  justly  be  said  to  be  of  such 
a  nature  as  to  require  exclusive  legislation  by 
Congress. ' ' 

A  short  time  before  it  had  been  declared  by  cwef  Jus- 
Chief  Justice  Taney,  in  License  Cases :^    *'  It  is  well  'f^fy/^^^- 
known  that  upon  this  subject  a  difference  of  opinion  g^o^K^' 
has  existed,  and  still  exists,  among  the  members  of  °*^"<^''^- 
this  court.     But  with  every  respect  for  the  opinion 
of  my  brethren  with  whom  I  do  not  agree,  it  appears 

7  (1851)  12  How.  (U.  S.)  299. 
«  (1847)  5  How.  (U.  S.)  504. 


58 


BEGULATION   OF   COMMERCE 


Chapter 
II. 


Exclusive 
as  to  trans- 
portation, 
and  ex- 
change of 
commodi- 
ties. 


to  me  to  be  very  clear,  that  the  mere  grant  of  power 
to  the  general  government  cannot,  upon  any  just 
principles  of  construction,  be  construed  to  be  an 
absolute  prohibition  to  the  exercise  of  any  power 
over  the  same  subject  by  the  States.  The  controlling 
and  supreme  power  over  commerce  with  foreign 
nations  and  the  several  States  is  undoubtedly  con- 
ferred upon  Congress.  Yet,  in  my  judgment,  the 
State  may  nevertheless,  for  the  safety  or  con- 
venience of  trade,  or  for  the  protection  of  the  health 
of  its  citizens,  make  regulations  of  commerce  for  its 
own  ports  and  harbors,  and  for  its  own  territory; 
and  such  regulations  are  valid  unless  they  come  in 
conflict  with  a  law  of  Congress.  Such  evidently,  I 
think,  was  the  construction  which  the  Constitution 
■aniversally  received  at  the  time  of  its  adoption,  as 
appears  from  the  legislation  of  Congress  and  of  the 
several  States;  and  a  careful  examination  of  the 
decisions  of  this  court  will  show  that,  so  far  from 
sanctioning  the  opposite  doctrine,  they  recognize  and 
maintain  the  power  of  the  States. ' ' 

As  the  question  whether  the  power  in  any  given 
case  is  vested  exclusively  in  the  general  government 
depends  upon  the  nature  of  the  subject  to  be  regu- 
lated,^ the  application  of  the  principle  to  particular 
subjects  is  left  to  be  dealt  with  hereafter  under  the 
detailed  treatment  of  the  subjects  of  regulation,  but 
it  may  be  here  stated  that  it  especially  requires  free- 
dom from  any  impediment  or  restriction  by  State 
action,^  and  mainly  includes,  as  subjects  of  national 
character  which  require  uniformity  of  regulation^ 
that  part  of  commerce  which  consists  in  the  inter- 
state and  foreign  transportation  of  persons  and 


•  Gilman  v.  Philadelphia,  (1865)  3  Wall.  (U.  S.)  713. 
1  Walling  V.  Michigan,  (1886)   116  U.  S.  446. 


BEGITLATION   OF   COMMERCE  59 


property ,2  and  the  purchase,  sale,  and  exchange  of    Chapter 
commodities.^ 

The  inference  from  all  this  that  the  States  may 
legislate  on  subjects  which  can  be  regulated  by  rules 
suited  to  the  circumstances  of  different  localities 
may  be  found  in  the  discussion  as  to  the  power  of 
the  States  generally  to  regulate  matters  pertaining 
to  commerce.* 


THE  NATIOl^AL  POWER  OF  EMINENT  DOMAIN. 

The  power  of  eminent  domain,  as  a  substantive  Not  a  sub- 
power,  was  not  granted  to  the  United  States  by  the  p^'^"'- 
Federal  Constitution,  and  consequently  it  is  one  of 
the  powers  reserved  by  the  people,  to  be  exercised 
by  them  through  their  several  State  governments, 
subject  to  such  limitations  as  the  people  may  pre- 
scribe in  their  State  constitutions,  and  to  those  re- 
strictions upon  its  exercise  decreed  by  the  Four- 
teenth Amendment  of  the  Federal  Constitution,  that 
no  State  shall  ^^  deprive  any  person  of  life,  liberty, 
or  property,  without  due  process  of  law,  nor  deny  to 
any  person  within  its  jurisdiction  the  equal  protec- 
tion of  the  laws.'' 

But  though  this  power,  because  not  granted,  is 
not  possessed  by  the  federal  government  as  a  sub- 

2  Gloucester  Ferry  Co.  v.  Pennsylvania,  (1885)  114  U.  S.  196; 
Welton  V.  Missouri,  (1875)  91  U.  S.  275;  State  Freight  Tax  Case, 
(1872)   15  Wall.  (U.  S.)   232. 

3  Mobile  County  v.  Kimball,   (1880)   102  U.  S.  691. 

The  power  is  "certainly  so  far  exclusive  that  no  State  has 
power  to  make  any  law  or  regulation  which  will  affect  the  free 
and  unrestricted  intercourse  and  trade  between  the  States,  as  Con- 
gress has  left  it,  or  which  will  impose  any  discriminating  burden 
or  tax  upon  the  citizens  or  products  of  other  States  coming  or 
brought  within  its  jurisdiction."  Pittoburg,  etc.,  Coal  Co.  v.  Bates, 
<1895)    156  U.  S.  577. 

4  See  infra,  p.  76. 


60 


BEGULATION   OF   COMMERCE 


Chapter 


T 


A  means  for 
carrying 
out  any 
federal 
purpose. 


How  prop- 
erty taken. 


Consent  of 
State  un- 
necessary. 


stantive  and  independent  power,  it  nevertheless  is  a 
means  by  which  the  general  government  may  accom- 
plish the  objects  of  the  grants  of  power.  When 
*  ^  needed  for  forts,  armories,  and  arsenals,  for  navy 
yards  and  light  houses,  for  custom  houses,  post- 
offices,  and  court-houses,  and  for  other  public 
uses,"  ^  lands  may  be  acquired  by  the  United  States 
within  the  States  either  by  direct  purchase  or  by 
condemnation.^ 

Under  the  power  to  regulate  commerce,  Congress 
may  exercise  this  sovereign  right.  Property  may 
be  taken  either  directly  by  the  government  itself,^ 
or  through  the  instrumentality  of  a  corporation 
chartered  by  Act  of  Congress  or  by  a  State.^ 
Artificial  as  well  as  natural  highways  may  be  taken,^ 
and  an  executive  officer  may  be  authorized  to  desig- 
nate the  particular  property  required.^ 

The  consent  of  the  State,  within  which  the  land 
is  situated,  is  not  necessary  to  its  appropriation  by 
the  national  government  for  national  purposes. 
**  The  proper  view,''  said  Mr.  Justice  Strong,  in 


&Per  Mr.  Justice  Strong,  in  Kohl  v.  U.  S.,  (1875)  91  U.  S.  367. 

The  cities  of  Washington  and  Georgetown  were  supplied  with 
water  conducted  by  aqueduct  from  the  States  of  Maryland  and  Vir- 
ginia, under  the  clause  giving  Congress  exclusive  legislation  over 
the  District  of  Columbia.  See  U.  S.  v.  Great  Falls  Mfg.  Co.,  (1884) 
112  U.  S.  645. 

8  Congress  may  exercise  this  power  in  a  Territory  as  well  as  in 
a  State,  as  was  done  by  the  Act  of  Congress,  approved  July  4,  1884, 
23  Stat.  L.  73,  c.  179,  entitled  "  An  Act  to  grant  the  right  of  way 
through  the  Indian  Territory  to  the  Southern  Kansas  Railway  Com- 
pany, and  for  other  purposes."  See  Cherokee  Nation  v.  Southern 
Kansas  R.  Co.,  (1890)  135  U.  S.  641. 

7U.  S.  V.  Jones,   (1883)   109  U.  S.  513. 

sLuxton  17.  North  River  Bridge  Co.,  (1894)  153  U.  S.  525; 
Cherokee  Nation  v.  Southern  Kansas  R.  Co.,   (1890)    136  U.  S.  641. 

iMonongahela  Nav.  Co.  v.  U.  S.,  (1893)   148  U.  S.  312. 

2  Kohl  V.  U.  S.,  (1875)  91  U.  S.  367. 


BEGULATION   OF   COMMERCE  61 


Kohl  V.  U,  S.,^  ''  of  the  right  of  eminent  domain    ChaDter 


seems  to  be,  that  it  is  a  right  belonging  to  a  sover- 
eignty to  take  private  property  for  its  own  public 
uses,  and  not  for  those  of  another.  Beyond  that 
there  exists  no  necessity;  which  alone  is  the  founda- 
tion of  the  right.  If  the  United  States  have  the 
power,  it  must  be  complete  in  itself.  It  can  neither 
be  enlarged  nor  diminished  by  a  State.  Nor  can 
any  State  prescribe  the  manner  in  which  it  must  be 
exercised.  The  consent  of  a  State  can  never  be  a 
condition  precedent  to  its  enjoyment.  Such  con- 
sent is  needed  only,  if  at  all,  for  the  transfer  of 
jurisdiction  and  of  the  right  of  exclusive  legislation 
after  the  land  shall  have  been  acquired. ' '  * 

Where  the  government,  by  the  construction  of  Passing  of 


public  works,  as  in  the  case  of  the  erection  of  a  dam 

3  (1875)  91  U.  S.  367. 

4  See  Article  I,  §  8,  providing  that  "  the  Congress  shall  have 
power  ...  to  exercise  exclusive  legislation  in  all  cases  what- 
soever, .  .  .  over  all  places  purchased  by  the  consent  of  the 
legislature  of  the  State  in  which  the  same  shall  be,  for  the  erection 
of  forts,  magazines,  arsenals,  dockyards,  and  other  needful  build- 
ings."    See  Van  Brocklin  v.  Tennessee,   (1886)   117  U.  S.  151. 

"  Where  .  .  .  lands  are  acquired  in  any  other  way  by  the 
United  States  within  the  limits  of  a  State  than  by  purchase  with 
her  consent,  they  will  hold  the  lands  subject  to  this  qualification: 
that  if  upon  them  forts,  arsenals,  or  other  public  buildings  are 
erected  for  the  uses  of  the  general  government,  such  buildings,  with 
their  appurtenances,  as  instrumentalities  for  the  execution  of  its 
powers,  will  be  free  from  any  such  interference  and  jurisdiction  of 
the  State  as  would  destroy  or  impair  their  effective  use  for  the 
purposes  designed.  Such  is  the  law  with  reference  to  all  instru- 
mentalities created  by  the  general  government.  Their  exemption 
from  State  control  is  essential  to  the  independence  and  sovereign 
authority  of  the  United  States  within  the  sphere  of  their  delegated 
powers.  But,  when  not  used  as  such  instrumentalities,  the  legisla- 
tive power  of  the  State  over  the  places  acquired  will  be  as  full  and 
complete  as  over  any  other  places  within  her  limits."  Per  Mr. 
Justice  Field,  in  Ft.  Leavenworth  R.  Co.  v.  Lowe,  (1885)  114  U.  S. 
525. 


title. 


ment. 


62  BEGULATION   OF   COMMERCE 

Chapter  for  the  purpose  of  improving  the  navigability  of  a 
'. river,  destroys  the  value  of  land,  so  that  it  consti- 
tutes a  taking  of  the  property  for  public  use,  the 
proceeding  must  be  regarded  as  an  actual  appro- 
priation of  the  land,  including  the  possession,  the 
right  of  possession,  and  the  fee,  and  when  the 
amount  awarded  as  compensation  is  paid,  the  title, 
with  whatever  rights  may  attach  thereto,  passes  to 
the  government.^ 

Duty  to  Make  Just  Compensation. 

S'poiid'by  ^^^  ^^^^'  however,  is  the  power  one  to  be  exer- 
Amilid-  cised  by  the  national  government  merely  as  a  means 
by  which  the  objects  of  the  grants  of  power  can  be 
carried  out,  but,  like  all  the  powers  granted  to  Con- 
gress by  the  Constitution  and  those  possessed  by 
Congress  as  incident  to  the  particular  sovereign 
powers  thus  created,  it  is  subject  to  all  the  limita- 
tions imposed  by  such  instrument.  Among  such 
limitations  is  the  clause  of  the  Fifth  Amendment 
declaring:  ^*  Nor  shall  private  property  be  taken 
for  public  use,  without  just  compensation.'^  It  is, 
of  course,  not  within  the  scope  of  this  work  to  give 
anything  like  a  comprehensive  treatment  of  the 
powers,  rights,  and  remedies  arising  out  of  the  due 
observance  of  this  restriction  upon  the  national 
eminent  domain  power,  but  its  application  to  pro- 
ceedings authorized  by  Congress  under  its  power  to 
regulate  commerce  may  be  considered.^  . 

8  U.  S.  r.  Lynah,  (1903)   188  U.  S.  445. 

See  Clark  v.  U.  S.,  (1902)  37  Ct.  CI.  503,  holding  that  when  only 
a  portion  of  a  tract  of  land  is  appropriated,  it  will  be  set  apart  by 
metes  and  bounds,  and  judgment  given  for  the  value  of  the  amount 
actually  taken. 

•And  it  may  be  here  worth  noting  that  this  limitation  forms 
part  of  the  same  amendment  which  also  declares :     "  Nor  [shall  any 


BEGULATION    OF   COMMERCE  63 

What  Property  May  Be  Taken,  if. 


Whatever  may  be  considered  as  a  property  right  Any  prop- 
is  a  proper  subject  of  compensation  when  it  is  ap- 
propriated or  destroyed^  Upon  the  condemnation 
of  a  lock  and  dam  belonging  to  a  navigation  com- 
pany on  a  navigable  river,  the  government  was  re- 
quired to  pay  the  value  of  the  franchise  given  by  the 
State  to  take  tolls  as  the  value  of  the  tangible  prop- 
erty of  the  company.^  And  when  the  United  States 
condemn  land  in  which  a  municipal  corporation, 
though  not  owning  the  fee,  has  a  property  right 
which  will  be  destroyed,  in  the  nature  of  easements 
and  improvements,  including  streets,  sewers,  and 
water  pipes,  the  corporation  is  entitled  to  com- 
pensation.^ 

Lands  under  navigable  waters  are  held  by  the  ^^^^^[^^^ 
State  in  trust  for  public  uses,  such  as  navigation  JJiperty. 
and  fishery,  and  the  erection  thereon  of  wharves, 

person]  be  deprived  of  life,  liberty,  or  property,  without  due  process 
of  law."  This  amendment  is  applicable  only  to  the  federal  govern- 
ment. The  corresponding  clause  of  the  Fourteenth  Amendment  is 
a  prohibition  on  the  States  to  "  deprive  any  person  of  life,  liberty, 
or  property,  without  due  process  of  law."  While  there  is  no  specific 
prohibition  in  the  Fourteenth  Amendment  against  the  taking,  by 
the  States  or  with  their  authority,  of  private  property  without 
making  just  compensation,  the  same  end  has  been  attained  by  such 
a  construction  of  the  Fourteenth  Amendment  as  makes  such  a 
taking  of  private  property  for  private  uses  or  without  making  just 
compensation,  a  deprivation  "  of  property,  without  due  process  of 
law." 

7  Depriving  a  riparian  owner  of  the  use  of  a  stream  by  diverting 
its  course  for  the  improvement  of  a  harbor  (Avery  v.  Fox,  (1868) 
1  Abb.  (U.  S.)  246,  2  Fed.  Cas.  No.  674)  and  establishing  a  line  of 
telegraph  upon  the  right  of  way  of  a  railroad  would  be  a  taking  of 
private  property.  Atlantic,  etc.,  Tel.  Co.  v.  Chicago,  etc.,  R.  Co., 
(1874)  6  Biss.  (U.  S.)   158,  2  Fed.  Cas.  No.  632. 

sMonongahela  Nav.  Co.  v.  U.  S.,   (1893)   148  U.  S.  312. 

•  Nahant  v.  U.  S.,  (1905)   136  Fed.  Rep.  273. 


64 


EEGULATION   OF   COMMERCE 


Chapter 


lapt 
if. 


piers,  light-houses,  beacons,  and  other  facilities  of 
navigation,  and  are  not  private  property.  The  ap- 
propriation of  such  land  by  Congress,  under  its 
paramount  power  to  regulate  commerce,  and  to 
authorize  the  erection  of  structures  thereon,  as  in 
the  case  of  the  building  of  piers  to  support  interstate 
bridges,  is  not  a  diversion  of  the  submerged  soil 
from  its  original  public  use,  nor  is  such  land  private 
property  for  the  taking  of  which  compensation  need 
be  given  to  the  State.^ 


Taking,  de- 
struction, 
or  impair- 
ment of 
usefulness. 


Consequen- 
tial and 
incidental 
injury. 


What  Constitutes  the  Talcing  of  Property. 

In  a  general  way  it  may  be  said  that  the  appro- 
priation of  land  by  the  officers  and  agents  of  the 
government  in  carrying  out  a  national  policy,  and 
the  permanent  holding  of  the  land  by  the  govern- 
ment, is  a  **  taking,''  within  the  meaning  of  the 
constitutional  provision.^  Yet  perhaps  only  the 
amount  actually  invaded,  and  not  the  whole  tract, 
should  be  considered  as  taken.^  But  it  is  not  neces- 
sary to  constitute  a  *'  taking  "  that  there  should  be 
an  actual  occupancy.  When  real  property  is  de- 
stroyed or  its  usefulness  is  impaired,  it  is  a  taking,* 
though  the  government  is  not  in  actual  occupancy 
of  the  land.^ 

The  distinction  between  damage  and  taking  must 
be  observed.^  There  is  a  distinction  between  the 
taking  of  property  for  public  uses,  and  a  conse- 

1  Stockton  V.  Baltimore,  etc.,  R.  Co.,  (1887)   32  Fed.  Rep.  9. 

2  See  Morris  v.  U.  S.,  (1895)  30  Ct.  CI.  162. 
•  See  Clark  v.  U.  S.,   (1902)  37  a.  CI.  503. 

*Pumpelly  v.  Green  Bay,  etc.,  Canal  Co.,  (1871)  13  Wall.  (U.  S.) 


166. 


6  King  V.  U.  S.,   (1893)   59  Fed.  Rep.  9. 
•  Bedford  v.  U.  S.,  (1904)  192  U.  S.,  217. 


BEGULATION   OF   COMMERCE  65 

quential  and  incidental  injury  to  property  by  reason    Chaoter 
of  some  public  work.     In  the  one  case,  by  reason  of  ' 

this  constitutional  provision,  the  law  implies  a  con- 
tract, a  promise  to  pay  for  the  property  taken,  while 
in  the  other  case  there  is  a  simple  tortious  act 
doing  injury,  for  which  there  can  be  no  recovery 
imless  the  government  acknowledges  liability,^  and, 
it  would  seem,  imless  the  right  to  recover  damages 
for  the  consequential  injury  is  expressly  conferred 
by  statute ;  ^  though  Mr.  Justice  Miller,  writing  the 
opinion  of  the  court  in  Pumpelly  v.  Green  Bay,  etc., 
Canal  Co.,^  said  that  ''  there  are  numerous  authori- 
ties to  sustain  the  doctrine  that  a  serious  inter- 
ruption to  the  common  and  necessary  use  of  prop- 
erty may  be,  in  the  language  of  Mr.  Angell,  in  his 
work  on  watercourses,  equivalent  to  the  taking  of  it, 
and  that  under  the  constitutional  provisions  it  is  not 
necessary  that  the  land  should  be  absolutely  taken. ' ' 

A  permanent  flooding  of  private  property  is  a  land."^"^^"^ 
taking.  In  U.  S.  v.  Lynah^  the  government,  in 
improving  the  navigation  of  the  Savannah  river, 
had  placed  dams  and  other  obstructions  in  such 
manner  as  to  hinder  its  natural  flow,  and  to  raise 
the  water,  which  overflowed  the  lands  of  a  riparian 
owner  and  caused  a  total  destruction  of  their 
value.  Such  a  proceeding  was  held  to  be  an  actual 
appropriation  of  the  land,^  and  the  case  of  Mills 

7U.  S.  V.  Lynah,  (1903)   188  U.  S.  445. 

8  High  Bridge  Lumber  Co.  V.  U.  S.,  (1895)   69  Fed.  Rep.  320. 

»  (1871)    13  WaU.  (U.  S.)   166. 

1  (1903)   188  U.  S.  445. 

2  A  similar  ruling  was  made  in  the  case  of  a  flooding  of  lands 
by  the  erection  of  a  dam  across  Fox  river,  the  northern  outlet  of 
Lake  Winnebago,  for  the  improvement  of  the  river  and  to  enable 
certain  persons  to  use  the  waters  of  the  river  for  hydraulic  pur- 

6 


66  REGULATION    OF    COMMERCE 

Chapter    i\  Jj^  S.^  was  referred  to  approvingly.     In  the  Mills 
,  ease,  the  flooding  of  land  had  unfitted  it  for  rice 

culture  and  rendered  new  drainage  necessary  where 
the  water  levels  were  suitable.  The  court  held  that 
there  was  no  taking,  but  simply  an  injury  to  the 
lands  which  could  be  remedied,  and  an  action  to 
recover  the  consequential  injury  was  not  sustained.'^ 
Any  injury  consequent  upon  the  building  of  a  revet- 
,  ment  which  does  not  change  the  course  of  a  river, 

but  which  operates  to  maintain  the  course  of  the 
river,  is  not  a  taking.^ 
»»^an  The  constitutional  provision  has  no  application 

to  the  riparian  right  of  access  to  navigability,  as  that 
right  can  be  enjoyed  only  in  subjection  to  the  right  of 
the  public.  *'  Riparian  ownership,''  said  Chief  Jus- 
poses,  as  authorized  by  a  statute  of  Wisconsin  Territory.  It  was 
held,  upon  the  facts  of  the  case,  that  where  real  estate  is  actually 
invaded  by  superinduced  additions  of  water,  earth,  sand,  or  other 
material,  or  by  having  any  artificial  structure  placed  on  it,  so  as 
effectually  to  destroy  or  impair  its  usefulness,  it  is  a  taking,  within 
the  meaning  of  the  Constitution.  Pumpelly  v.  Green  Bay,  etc., 
Canal  Co.,   (1871)    13  Wall.   (U.  S.)   166. 

In  undertaking  the  improvement  of  the  navigation  of  a  river, 
property  is  "  taken "  when  it  is  actually  invaded  by  rendering  it 
absolutely  unfit  for  cultivation,  whereby  the  owner  has  been  com- 
pelled to  abandon  it  and  has  been  practically  ousted  of  possession. 
Williams  v.  U.  S.,  (1900)  104  Fed.  Rep.  50.  See  Merriam  v.  U.  S., 
(1894)  29  Ct.  CI.  250. 

Where  an  overflow  is  not  continuous,  but  annual,  rendering  the 
land  unfit  for  cultivation,  and  entirely  destroying  its  value,  there 
is  a  taking.    Jackson  v.  U.  S.,  (1896)  31  Ct.  CI.  318. 

3  ( 1891 )   46  Fed.  Rep.  738. 

*  Where  the  injury  is  the  result  of  the  faulty  construction  of 
a  dam,  the  damages  are  consequential.  Hayward  v.  U.  S.,  (1895) 
30  Ct.  CI.  219. 

B  Bedford  v.  U.  S.,  (1904)  192  U.  S.  217,  affirming  (1901)  36 
a.  CI.  474. 

But  an  easement  in  the  waters  of  a  creek  is  a  property  right, 
and  compensation  must  be  given  when  it  is  destroyed  by  a  diversion 
of  the  creek.     Lowndes  v.  U.  S.,   ( 1901 )    105  Fed.  Rep.  838. 


BEGULATION    OF    COMMERCE  67 

tice  Fuller,  in  Gibson  v.  U.  S.,^  '*  is  subject  to  the    Chapter 
obligation  to  suffer  the  consequences  of  the  improve-  ' 

ment  of  navigation  in  the  exercise  of  the  dominant 
right  of  the  government  in  that  regard. ' '  The  right 
of  compensation  for  the  taking  of  property  has  no 
leference  to  the  case  of  an  owner  of  land  bordering 
on  a  public  navigable  river  whose  access  from  his 
land  to  navigability  is  permanently  lost  by  reason  of 
the  construction  of  a  pier  resting  on  submerged 
lands  away  from  but  in  front  of  his  upland,  and 
which  pier  was  erected  by  the  United  States  not 
with  any  intent  to  impair  the  rights  of  riparian 
owners,  but  for  the  purpose  only  of  improving  the 
navigation  of  such  river.  The  riparian  owner  has 
no  property  right  in  the  submerged  soil.'  And 
where  by  the  construction  of  a  dyke  by  the  United 
States  in  a  river  improvement,  the  depth  of  water 
was  reduced  and  a  riparian  owner  was  through  the 
greater  part  of  the  season  deprived  of  the  use  of  his 
landing  for  the  shipment  of  products  from  and  sup- 
plies to  his  farm,  the  injury  was  held  to  be  only 
consequential.^ 

Where  a  bridge  has  been  erected  by  authority  of  ^r^^iteTa"' 
a  State  before  Congress  assumes  actual  jurisdiction  ^'°"  °^ 
over  the  river  for  the  purposes  of  navigation,  and 
it  is  declared  to  be  an  obstruction  to  navigation, 
such  obstruction  may  be  removed  without  compen- 
sation from  the  United  States,  and  such  removal 
cannot  be  regarded  as  a  *^  taking  of  private  prop- 
erty, ' '  within  the  meaning  of  the  Constitution.     The 


6  (1897)   166  U.  S.  269. 

TScranton  v.  Wheeler,   (1900)    179  U.  S.  141. 
8  Gibson  v.  U.  S.,  (1897)    166  U.  S.  269. 

A  very  similar   case   was   that  of   Friend   v.   U.    S.,    (1895)    30 
Ct.  CI.  94. 


bridge. 


68  REGULATION    OF    COMMEEOE 

Chapter  Attorney-General  so  advised  the  Secretary  of  War,^ 
'  citing  Newport,  etc.,  Bridge  Co.  v.  U,  S.y^  wherein 
Congress  had  given  permission  to  erect  a  bridge 
across  a  navigable  river,  as  authorized  by  the  State, 
the  federal  permission  being  given  upon  condition 
that  it  might  be  revoked  at  any  time  if  the  bridge 
should  be  found  detrimental  to  navigation.  In  such 
a  case  no  liability  could  rest  on  the  United  States 
to  pay  the  bridge  company  for  the  cost  of  any 
change  directed  in  the  plan  of  the  bridge.^ 

Mode  of  Adjudging  and  Making,  and  Measure  of, 
Compensation. 

Measure  of        The  measure  of  compensation  is  a  judicial  and 

rompensa-  ^  ** 

iiSidai  iiot  a  legislative  question.  The  ascertainment  of 
luestion.  ^^^  amount  is  not  an  element  of  the  power  of  ap- 
propriation, but  the  constitutional  provision  for 
just  compensation  for  the  property  taken  is  merely 
a  condition  or  limitation  upon  the  use  of  the  power. 
**  The  legislature,"  said  Mr.   Justice  Brewer,  in 

9  Navigable  Waters,  (1896)  21  Op.  Atty.-G^.  430. 

1  (1881)    105  U.  S.  470. 

2  See  also  Willamette  Iron  Bridge  Co.  v.  Hatch,  (1888)  125 
\J.  S.  1. 

Under  l^e  charter  of  a  bridge  company  the  contract  between  the 
bridge  company  and  the  State  was  that  the  company  should  have 
the  right  to  erect,  control,  and  use  the  bridge  as  a  toll  bridge  with- 
out interference  in  the  way  of  putting  in  compulsorily  a  draw 
until,  undef  the  acts  of  some  authority  competent  to  act,  the  river 
should  be  employed  for  the  purposes  of  practical  navigation.  An 
Act  Of  Congress  declared  the  bridge  to  be  an  obstruction  to  navi- 
gation, and  required  the  construction  of  a  draw.  Denying  the  right 
of  the  owner  of  the  bridge  to  compensation  was  put  upon  the 
ground  that  the  reservation  in  the  charter  of  the  right  of  the  State 
to  require  a  draw  to  be  constructed  inured  to  the  nation  when 
the  authority  of  the  United  States  was  exercised  tot  the  same  pur- 
pose.   U.  S.  V.  Moline.  (1897)  82  Fed.  Rep.  592. 


REGULATION    OP   COMMERCE  69 

Monongahela  Nav.  Co.  v.  U.  S.,^  **  may  determine    Chaoter 
what  private  property  is  needed  for  public  purposes  ' 

—  that  is  a  question  of  a  political  and  legislative 
character;  but,  when  the  taking  has  been  ordered, 
then  the  question  of  compensation  is  judicial.  It  does 
not  rest  with  the  public,  taking  the  property,  through 
Congress  or  the  legislature,  its  representative,  to 
say  what  compensation  shall  be  paid,  or  even  what 
shall  be  the  rule  of  compensation.  The  Constitu- 
tion has  deHared  that  just  compensation  shall  be 
paid,  and  the  ascertainment  of  that  is  a  judicial 
inquiry. ' ' 

Though  the  measure  of  compensation  is  a  judicial  Tribunals, 
question,  it  is  not  necessary  that  jurisdiction  in  such 
cases  should  be  left  to  the  regularly  established  fed- 
eral courts.  When  an  executive  officer  is  vested  by 
Act  of  Congress  with  power  to  obtain  land  by  con- 
demnation, without  any  legislative  direction  as  to 
the  mode  of  exercising  the  power,  the  jurisdiction 
of  any  competent  tribunal  may  be  invoked  to  that 
end.  Thus,  it  has  been  determined  ^  that  a  proceed- 
ing to  take  land  for  public  uses  by  condemnation  is 
a  suit  at  common  law,  within  the  meaning  of  the 
Judiciary  Act  of  1789,^  conferring  upon  the  Circuit 
Courts  of  the  United  States  jurisdiction  of  all  suits 
at  common  law  or  in  equity,  brought  by  the  United 
States  or  any  officer  thereof  under  the  authority  of 
any  Act  of  Congress.      And  whether  the  tribunal 

3  (1893)   148  U.  S.  312. 

*Kohl  V.  U.  S.,  (1875)  91  U.  S.  367. 

6  Act  of  Congress  of  September  24,  178^,  c.  20,  1  Stat,  at  L.  78, 
«amed  forward  into  §  €29,  U.  S.  Rev.  Stat.  Section  629  was  super- 
seded in  part  by  the  Acts  of  March  3,  1875.  c.  137,  18  Stat,  at  L. 
470,  §  1;  of  March  3,  1887,  c.  373,  §  1;  and  of  August  13,  1888, 
c.  866,  §  1.  See  the  title  Judiciary,  in  4  Fed.  Stat.  Annot.,  pp.  245 
et  seq.,  and  265  et  seq. 


70  EEGULATION    OP    COMMERCE 

Chapter  shall  be  created  directly  by  an  Act  of  Congress,  or 
'  whether  one  already  established  by  the  States  shall 
be  adopted  for  the  occasion,  is  a  mere  matter  of 
legislative  discretion.^ 

Jury  trial.  j^  sccms  to  bc  unncccssary  that  the  estimate  of 

just  compensation  be  made  by  a  jury.  The  Seventh 
Amendment,  providing  that  ^^  in  suits  at  common 
law,  where  the  value  in  controversy  shall  exceed 
twenty  dollars,  the  right  of  trial  by  jury  shall  be 
preserved,''  has  reference  merely  to  such  suits  as 
at  common  law  were  ordinarily  tried  by  jury,  and 
among  those  a  proceeding  for  condemnation  was  not 
included.^  In  Great  Falls  Mfg.  Co.  v.  Atty.-Gen.,^ 
in  reply  to  the  contention  that  the  Act  of  Congress 
providing  for  the  supply  of  the  cities  of  Washington 
and  Georgetown  with  water  from  the  Potomac  river 
was  unconstitutional  and  void,  for  that  the  Act 
made  no  provision  by  which  compensation  for  prop- 
erty taken  under  it  could  be  constitutionally  ad- 
justed and  determined,  that  it  did  not  provide  for 
the  ascertainment  of  such  compensation  by  the  ver- 
dict of  a  jury,  and  that  it  compelled  the  plaintiff  to 

cSiSs°^  li^ve  recourse  to  the  Court  of  Claims,  which  is  a 
court  unknown  to  the  Constitution,  being  neither  a 
court  of  equity  such  as  was  known  at  the  adoption 
of  that  instrument,  nor  a  court  of  law  proceeding 
according  to  the  rules  of  the  common  law,  but  only 
a  board  of  referees,  constituted  by  one  party  to 
hear  such  cases  as  another  party  will  consent  to 
submit  to  its  determination,  and  without  the  power 
to  enforce  its  judgment  against  the  party  by  whom 
it  is  created,  the  court,  speaking  through  Mr.  Justice 

«U.  S.  V.  Jones,  (1883)   109  U.  S.  513. 

7  See  U.  S.  V.  Engerman,  (1891)  46  Fed.  Rep.  176. 

8  (1888)   124  U.  S.  581. 


REGULATION    OF   COMMEECE  71 

Harlan,  said:     ^*  By  the  very  act  of  suing  in  the    Chapter 
Court  of  Claims,  under  the  statute  of  1882,  it  [the  ,. 

plaintiff]  has  not  only  waived  the  right,  if  such 
right  it  had,  to  compensation  in  advance  of  the 
taking  of  its  property,  but  the  right,  if  .3uch  it  had, 
to  demand  that  the  amount  of  compensation  be 
determined  by  a  jury.  By  the  same  act  it  has 
estopped  itself  from  suggesting  that  no  judgment 
obtained  in  the  Court  of  Claims  can  be  enforced 
against  the  United  States,  but  must  await  an  appro- 
priation for  its  payment.  When  it  resorted  to  that 
court,  it  knew  that  its  judgments  against  the  United 
States  could  only  be  paid  out  of  money  appropriated 
for  that  purpose  by  Congress.  In  short,  the  plain- 
tiff has  voluntarily  accepted  the  provisions  of  the 
Act  of  Congress  in  respect  to  the  mode  of  ascertain- 
ing the  compensation  to  be  made  to  it."  But  in 
Bauman  v.  Ross  ^  Mr.  Justice  Gray  said  that  ^  ^  by 
the  Constitution  of  the  United  States,  the  estimate 
of  the  just  compensation  for  property  taken  for  the 
public  use,  under  the  right  of  eminent  domain,  is 
not  required  to  be  made  by  a  jury;  but  may  be 
intrusted  by  Congress  to  commissioners  appointed  commi»^ 
by  a  court  or  by  the  executive,  or  to  an  inquest  con- 
sisting of  more  or  fewer  men  than  an  ordinary 
jury. "  ^  So  that  it  would  appear  that  all  that  is 
required  is  that  it  shall  be  conducted  in  some  fair 
and  just  manner,  with  opportunity  to  the  owners  of 
the  property  to  present  evidence  as  to  its  value, 
and  to  be  heard  thereon.  Or,  as  was  said  by  Mr. 
Justice  Brewer  in  Backus  v.  Fort  Street  Union 
Depot  Co.,^  a  case  in  which  it  was  claimed  that,  ia 

9  (1897)   167  U.  S.  548. 

iSee  also  U.  S.  r.  Jones.   (1883)    109  U.  S.  513. 
.2  (1898)   169  U.  S.  557. 


72 


REGULATION   OF   COMMERCE 


Chapter 


lapt 
II. 


"Due 
process 
of  law." 


Full 
equiraleat. 


Consider- 
ing benefits. 


failing  to  provide  for  a  jury  trial  upon  condemna- 
tion under  State  authority,  the  owner  had  been 
deprived  of  the  **  due  process  of  law  ''  guaranteed 
by  the  Fourteenth  Amendment:  ^^All  that  is  essen- 
tial is  that  in  some  appropriate  way,  before  some 
properly  constituted  tribunal,  inquiry  shall  be  made 
as  to  the  amount  of  compensation,  and  when  this 
has  been  provided  there  is  that  due  process  of  law 
which  is  required  by  the  Federal  Constitution. '^ 

The  requirement  that  ''  just  compensation  '' 
shall  be  paid  means  that  there  must  be  a  full  and 
perfect  equivalent  for  the  property  taken,  and  ex- 
cludes the  taking  into  account,  as  an  element  in 
estimating  the  compensation,  any  supposed  general 
benefit  that  the  owner  may  receive  in  common  with 
all  from  the  public  uses  to  which  his  private  prop- 
erty is  appropriated.^  But  inasmuch  as  the  pro- 
vision contains  no  express  prohibition  against  con- 
sidering any  benefits,  no  such  prohibition  can  be  im- 
plied. In  Bauman  v.  Ross,^  which  was  a  case  arising 
out  of  the  exercise  by  Congress,  not  of  the  power 
to  regulate  commerce,  but  of  the  power  to  legislate 
for  the  District  of  Columbia,  Mr.  Justice  Gray  said 
that  it  is  within  the  authority  of  Congress  to  direct 
that,  when  part  of  a  parcel  of  land  is  appropriated 
to  the  public  use  for  a  highway  in  the  District  of 
Columbia,  the  tribunal  vested  by  law  with  the  duty 
of  assessing  the  compensation  or  damages  due  to 
the  owner,  whether  for  the  value  of  the  part  taken, 
or  for  any  injury  to  the  rest,  shall  take  into  con- 
sideration, by  way  of  lessening  the  whole  or  either 
part  of  the  sum  due  him,  any  special  and  direct 
benefits,  capable  of  present  estimate  and  reasonable 

sMonongahela  Nav.  Co.  v.  U.  S.,  (1893)   148  U.  S.  312. 
*  (1897)   167  U.  S.  548. 


REGULATION    OF   COMMEBCE  73 

computation,  caused  by  the  establishment  of  the    Chapter 
highway  to  the  part  not  taken.     And  such  a  rule  as  ' 

to  special  and  direct  benefits  would  seem  to  be 
equally  applicable  on  the  valuation  of  property  con- 
demned for  any  purpose  for  which  Congress  may 
take  it  or  authorize  it  to  be  taken.^ 

The  constitutional  provision  does  not  provide  Time  of, 

■^       ,  •*■  or  provis- 

cr  require  that  compensation  shall  be  actually  paid  pa^ymcnt. 
in  advance  of  the  occupancy  of  the  land  to  be  taken. 
An  Act  of  Congress  authorizing  a  railroad  company 
to  locate  a  railway,  telegraph,  and  telephone  line 
through  the  Indian  Territory,  provided  that  before 
the  railway  should  be  constructed  through  any  lands 
proposed  to  be  taken,  full  compensation  should  be 
made  to  the  owners  for  all  property  to  be  taken  or 
damage  done  by  reason  of  the  construction  of  the 
road.  In  the  event  of  an  appeal  from  the  finding 
of  the  referees,  the  company  was  required  to  pay 
into  the  court  double  the  amount  of  the  award,  to 
abide  its  judgment ;  and,  that  being  done,  the  com- 
pany might  enter  upon  the  property  sought  to  be 
condemned,  and  proceed  with  the  construction  of  its 
road.  Such  provisions  were  held  sujSiciently  rea- 
sonable, certain,  and  adequate  to  secure  the  just 
compensation  to  which  an  owner  was  entitled.^ 

A  distinction  has  been  made  between  a  proceeding  Provision 

forpay- 

f or  actual  condemnation  and  a  proceeding  merely  to  "^"dido 
ascertain  the  value  of  the  property  it  is  proposed  ^^^"^^  ^^^^ 
to  take.    And  so  it  has  been  held  that  where  an  Act 
of  Congress,  adopted  for  the  improvement  of  a  har- 
bor, provides  '  ^  that  the  title  to  any  additional  lands 

6  See  Chesapeake,  etc.,  Canal  Co.  v.  Key,  (1829)  3  Cranch 
(C.  C.)  599,  5  Fed.  Gas.  No.  2649. 

«  Cherokee  Nation  v.  Southern  Kansas  R.  Co.,  (1890)  135  U.  S. 
641. 


condition  oi 
actual  con- 
demnation. 


74  EEGULATION    OF    COMMERCE 

Chapter  acquired  for  this  purpose  shall  be  vested  in  the 
'  United  States  without  charge  to  the  latter/'  there 
can  be  no  condemnation  proceedings  for  the  appro- 
priation of  such  lands/  But  in  the  case  of  a  want 
of  provision  for  the  payment  of  the  value  of  prop- 
erty when  ascertained,  it  has  been  said  that  a  pro- 
ceeding may  be  maintained  to  ascertain  the  value 
of  the  property  on  the  ground  that  such  a  proceed- 
ing is  not  a  taking  of  private  property  for  public 
use,  or  one  that  must  necessarily  result  in  such  tak- 
ing, but  that  it  is  only  preliminary  thereto,  and  for 
the  purpose  of  ascertaining  the  value  of  the  prop- 
erty proposed  to  be  taken,  and  that  the  final  appro- 
priation will  not  take  place,  if  ever,  until  the  court 
gives  judgment  to  that  effect,  which  it  is  not  author- 
ized to  do,  and  will  not  do,  until  its  value  has  been 
paid  to  the  owner  or  into  court  for  it.^  ' 

T  In  re  Manderson,  (1892)  51  Fed.  Rep.  501,  wherein  the  court 
said :  "  The  statement  of  counsel  that  the  damages  would  be  paid 
by  voluntary  contributions     ...    is  too  uncertain  to  be  relied  on.'* 

8U.  S.  V.  Oregon  R.,  etc.,  Co.,   (1883)    16  Fed.  Rep.  524. 

"  The  taking  of  private  property  should  not  be  allowed  until 
compensation  is  actually  made,  thus  imposing  on  the  owner  no 
burthen  of  seeking  or  pursuing  expensive  remedies,  and  leaving  him 
exposed  to  no  risk  or  expense  in  obtaining  compensation."  Avery 
V.  Fox,  (1868)  1  Abb.  (U.  S.)  246,  2  Fed.  Gas.  No.  674. 


CHAPTER  III. 
THE  GENERAL  POWER  OF  THE  STATES. 

THE    POWER    OF    THE    STATES    OVER   DOMESTIC 
COMMERCE. 


OVER  its  internal  or  domestic  commerce  a  State    Chapter 
has  full  and  exclusive  control,^  though  the   * 

State  regulation  may  directly  affect  inter- 
state commerce.^ 

Over    the    instruments    of    commerce    situated  ^lits'^f 
wholly  within  its  jurisdiction,  a  State  has  exclusive  wh^Sr''^ 
governmental  control,  except  when  they  are   em- 

1  Addyston  Pipe,  etc.,  Co.  v.  U.  S.,  (1899)  175  U.  S.  211. 

Congress  "has  nothing  to  do  with  the  purely  internal  com- 
merce of  the  States,  that  is  to  say,  with  such  commerce  as  is  carried 
on  between  different  parts  of  the  same  State,  if  its  operations  are 
confined  exclusively  to  the  jurisdiction  and  territory  of  that  State, 
and  do  not  affect  other  nations  or  States  or  the  Indian  tribes." 
Per  Chief  Justice  Waite,  in  Lord  v.  Goodall,  etc.,  Steamship  Co., 
(1880)    102  U.  S.  541. 

A  license  to  carry  on  a  particular  business  under  an  Act  of  Con- 
gress conveys  to  the  licensee  no  authority  to  carry  on  the  licensed 
business  within  a  State.  License  Tax  Cases,  (1866)  5  Wall.  (U.  S.) 
462. 

2  Covington,  etc.,  Bridge  Co.  v.  Kentucky,   (1894)    154  U.  S.  204. 

Prohibiting  the  use  of  the  arms  or  the  great  seal  of  the  common- 
wealth, or  any  representation  thereof,  for  advertising  or  commercial 
purposes,  is  valid.  Com.  v.  R.  I.  Sherman  Mfg.  Co.,  (1905)  189 
Mass.  7G,  citing  Plumley  v.  Massachusetts,  (1894)  155  U.  S.  461; 
Com.  r.  Huntley,   (1892)    156  Mass.  236. 

So  far  as  a  State  anti-trust  law  undertakes  to  prohibit  and 
render  null  and  void  all  arrangements,  contracts,  or  agreements 
whatsoever,  between    persons,    firms,    or   corporations,   which    inten- 


76  EEGULATION    OF   COMMERCE 

Chapter  ployed  in  foreign  or  interstate  eoromerce.  Their 
'  regulation  for  all  purposes  may  be  assumed  by  the 
State  until  Congress  acts  in  reference  to  their 
foreign  or  interstate  relations,  and  when  Congress 
acts  the  State  laws  are  superseded  only  to  the 
extent  that  they  affect  those  foreign  or  interstate 
relations  of  the  instrumentality.^ 

LOCAL  REGULATIONS   OP   INTERSTATE   COMMERCE. 

To  meet  As  a  coToUary  to  the  proposition  that  the  power 

varying  .  . 

circum-       of  Congress  is  exclusive  wherever  the  matter  is  na- 

stances  oi  '-' 

uJSiiSs.  tional  in  :ts  character  or  admits  of  one  uniform 
system  or  plan  of  regulation,  it  is  now  well  settled 
that  the  States  may  legislate  on  subjects  which  can 
be  best  regulated  by  rules  and  provisions  suggested 
by  the  varjdng  circumstances  of  different  localities, 
and  limited  to  such  localities  respectively.  ^^  The 
xmiformity  of  commercial  regulations,  which  the 
grant  to  Congress  was  designed  to  secure  against 
conflicting  State  provisions,  was  necessarily  in- 
tended only  for  cases  where  such  uniformity  is 
practicable.    Where  from  the  nature  of  the  subject 

tionallj  tend  to  laseen  full  and  free  competition  in  the  importation 
or  sale  of  articles  imported  into  the  State,  or  in  the  manufacture 
or  sale  of  articles  of  domestic  growth  or  of  domestic  raw  material, 
it  is  invalid.  State  v.  Virginia-Carolina  Chemical  Co.,  (1904)  71  S. 
Car.  544. 

3  Hall  V,  De  Cuir,   (1877)   95  U.  S.  485. 

"Whilst  every  instrumentality  of  domestic  commerce  is  Buhject 
to  State  control,  every  instrumentality  of  interstate  commerce  may 
be  reached  and  controlled  by  national  authority,  so  far  as  to  compel 
it  to  respect  the  rules  for  such  commerce  lawfully  established  by 
Congress.  Xo  corporate  person  can  excuse  a  departure  from  or  vio- 
lation of  that  rule  under  the  plea  that  that  which  it  has  done  or 
omitted  to  do  is  permitted  or  not  forbidden  by  the  State  under 
whose  authority  it  came  into  existence."  Per  Mr.  Justice  Harlan, 
in  Northern  Securities  Co.  v.  U.  S.,  (1904)   193  U.  S.  197. 


REGULATION    OF   COMMERCE 


77 


or  the  sphere  of  its  operation  the  case  is  local  and    Chapter 
limited,  special  regulations  adapted  to  the  immedi-  ' 

ate  locality  could  only  have  been  contemplated. 
State  action  upon  such  subjects  can  constitute  no 
interference  with  the  commercial  power  of  Con- 
gress, for  when  that  acts  the  State  authority  is 
superseded. ' '  ^ 

The  power  of  the  States  to  legislate  on  matters  A^^v^„^°[ 
of  local  concern  is  largely  based  upon  the  idea  that 
such  local  regulations  are  in  the  nature  of  aids  to 
commerce,^  but  whether  in  fact  aids  to  commerce 
or  incidental  obstructions,  such  regulations  are 
within  the  power  of  the  States  until  controlled  by 
appropriate  federal  legislation."^ 


incidental 
obstruc- 
tions to 
commerce. 


CONSTRUCTION  OF  STATE  STATUTES. 

It  is  a  general  rule  of  the  Supreme  Court  of  the  Following 

*-'  -^  construe- 

United  States  to  accept  the  construction  of  the  ^^^^^^y 
courts  of  a  State  upon  its  statutes  and  constitution  ''°""*- 
when  the  federal  Supreme  Court  is  called  upon  to 
decide   questions   arising   under   such  legislation.^ 

9  Per  Mr.  Justice  Field,  in  Mobile  County  v.  Kimball,  (1880) 
102  U.  S.  691.  See  also  Leisy  v.  Hardin,  (1890)  135  U.  S.  100; 
Oilman  v.  Philadelphia,   (1865)  3  Wall.   (U.  S.)    713. 

«Cardwell  v.  American  Bridge  Co.,'  (1885)  113  U.  S.  205; 
Escanaba,  etc.,  Transp.  Co.  v.  Chicago,   (1882)    107  U.  S.  678. 

7  Oilman  v.  Philadelphia,    (1865)    3  Wall.    (U.  S.)    713. 

*'The  question  is  not  whether,  in  any  particular  case,  operation 
may  be  given  to  both  [federal  and  State]  statutes,  but  whether 
their  enforcement  may  expose  a  party  to  a  conflict  of  duties.  It  is 
enough  that  the  two  statutes  operating  upon  the  same  subject- 
matter  prescribe  different  rules.  In  such  case  one  must  yield,  and 
that  one  is  the  State  law."  Per  Mr.  Justice  Brewer,  in  Oulf,  etc., 
R,  Co.  V.  Hefley,   (1895)    158  U.  S.  98. 

8  New  York,  etc.,  R.  Co.  v.  Pennsylvania,  (1895)  158  U.  S.  431; 
Postal  Tel.  Cable  Co.  v.  Adams,  ( 1895)    155  U.  S.  688. 

**  As  the  record  presents  none  of  the  exceptional  cMiditions  which 
sometimes  impel  this  court  to  disregard  inadmissible  constructions 


78 


REGULATION   OF   COMMERCE 


Chapter 
III. 


Validity  as 
construed  a 
federal 
question. 


When  fed- 
eral ques- 
tion in- 
volved in 
construc- 
tion. 


The  construction  is  given  the  same  effect  as  if  it 
were  part  of  the  statute,^  and  the  decision  of  a 
State  court  whether  a  particular  statute  has  or  has 
not  been  repealed  is  conclusive.^  As  affecting  or 
not  interstate  or  foreign  commerce,  what  the  sev- 
eral State  courts  say  their  own  statutes  mean  must 
be  accepted,  whether  it  is  declared  by  limiting  the 
objects  of  their  general  language  to  local  business, 
or  by  separating  their  provisions  into  valid  and  in- 
valid parts.2 

After  the  construction  has  been  given  and  ac- 
cepted, the  federal  question  remains,  whether  the 
statute  as  so  construed  is  valid.  And  though  it 
might  admit  of  question  whether  a  State  statute 
w^as  designed  by  its  framers  to  affect  other  than 
domestic  commerce,  yet  if  the  State  court  gives  the 
statute  an  interpretation  which  makes  it  apply  to 
what  is  understood  to  be  commerce  among  the 
States,  the  construction  must  be  followed,  and  the 
statute  will  be  declared  invalid.^ 

But  when  the  construction  of  the  statute  enters 
into  the  question  of  its  relationship  to  commerce, 
the  construction  is  not  binding  upon  the  federal 
court.  A  municipal  ordinance  required  a  license 
from  a  canvasser  for  the  privilege  of  transacting 
the  business  of  soliciting  orders  for  goods  manu- 


given  by  State  courts  to  even  their  own  State  statutes  and  State 
constitutions,  we  shall  adopt  the  construction  of  the  statute  of  Iowa 
under  consideration,  which  has  been  given  it  by  the  Supreme  Court 
of  that  State."     Kidd  i>.  Pearson,   (1888)   128  U.  S.  1. 

•  Howe  Mach.  Co.  v.  Gage,  (1879)   100  U.  S.  676. 
iPeik  V.  Chicago,  etc.,  R.  (Do.,   (1876)   94  U.  S.  164. 

a  Waters-Pierce  Oil  Co.  v.  Texas,   (1900)    177  U.  S.  28. 
That  an  objectionable  provision  may  be  eliminated  by  construc- 
tion, see  the  chapter  on  Discriminative  State  Statutes,  infra,  p.  253. 

•  Wabash,  etc.,  R.  Co.  v.  Illinois,  (1886)   118  U.  S.  657;  Hall  t7. 
De  Cuir,  (1877)   96  U.  S.  485. 


REGULATION    OF    COMMERCE  79 

factured   in   another   State.     The   State   Supreme    Chapter 
Court  *  held  that  the  ordinance  was  valid  as  an  ex-  ' 

ercise  of  the  police  power  in  that  whether  the  solici- 
tation from  house  to  house  by  itinerant  vendors  or 
canvassers  is  an  evil  to  b^  suppressed  or  reduced  in 
its  proportions  by  appropriate  legislation  is  under 
ordinary  circumstances  a  legislative  question.  But, 
on  a  writ  of  error  from  the  Supreme  Court  of  the 
United  States,^  that  court  was  not  bound  by  the 
decision  of  the  State  court  on  the  question  whether 
the  tax  was  an  exercise  of  the  police  power  and  not 
of  the  taxing  power,  and  held  the  statute  to  be  of 
the  latter  character  and  void.^ 

THE  STATE  POLICE  POWER. 

The  doctrine  of  the  police  power  is  one  which 
from  its  very  nature  is  not  susceptible  of  clear 
statement,  but  can  only  be  suggested  by  general  dis- 
cussion and  illustration.  In  a  work  dealing  with 
a  single  one  of  the  grants  of  power  to  the  federal 
government,  the  subject  of  the  exercise  of  the  State 
police  power  can  be  particularly  treated  only  as  it 
is  affected  by  that  grant  of  power,  but  its  general 
outline  may  be  first  suggested.  The  whole  field  of 
State  regulation  of  matters  affecting  interstate  and 
foreign  commerce  is  more  or  less  concerned  with 
the  exercise  of  this  power,  so  that  the  application 
in  detail  of  the  principles  governing  it  may  be  made 

*Titusville  V.  Brennan,  (1891)  143  Pa.  St.  642. 

sBrennan  v.  Titusville,   (1894)   153  U.  S.  289. 

6  "  When  the  question  is  raised  whether  the  State  statute  is  a 
just  exercise  of  State  power,  or  is  intended  by  roundabout  means  to 
invade  the  domain  of  federal  authority,  this  court  will  look  into 
the  operation  and  effect  of  the  statute  to  discern  its  purpose."  Per 
Mr.  Justice  Miller,  in  Morgan's  Steamship  Co.  v.  Louisiana  Board 
of  Health,  (1886)  118  U.  S.  455. 


80 


EEGULATIOIS'   OF   COMMERCE 


Chapter 


laptx 
III. 


Police 
regulations 
of  muni- 
cipal cor- 
porations. 


How  un- 
derstood in 
a.  constitu- 
tional  sense. 


by  reference  to  the  second  and  third  parts  of  this 
work. 

The  so-called  police  regulations  of  municipal 
corporations  should  not  be  confused  with  what  are 
understood  in  constitutional  law  as  the  reserved 
police  powers.  The  twofold  powers  of  municipal 
corporations,  exercised  on  the  one  hand  in  the  per- 
formance of  public,  legislative,  or  judicial  duties, 
and  on  the  other  hand  for  private,  local,  or  merely- 
corporate  purposes,  have  attached  to  them  distinct 
rights  and  liabilities.  With  probably  some  conflict 
of  authority  on  exceptional  matters,  it  may  perhaps 
be  said,  as  illustrating  this  distinction,  that  a  muni- 
cipal corporation  is  not  liable  in  tort  for  negligence 
in  nonfeasance  or  misfeasance  in  the  performance 
of  its  public  duties  and  governmental  functions,  but 
that  in  the  exercise  of  merely  corporate  powers,  the 
rules  which  govern  the  liability  in  tort  of  individ- 
uals or  private  corporations  are  properly  appli- 
cable. Such  distinctions  are  in  many  ways 
recognized  between  governmental  and  corporate 
functions,  the  former  being  frequently  referred  to 
as  the  exercise  of  a  police  power,  or  the  power  of 
the  municipality  to  adopt  and  enforce  proper  police 
regulations. 

In  a  constitutional  sense,  however,  the  exercise 
of  the  police  power  of  a  State,  though  perhaps  refer- 
able to  the  same  source  of  power,  inherent  sover- 
eignty, is  questioned  on  the  ground  of  supposed  or 
real  repugnance  to  a  constitutional  prohibition  or 
limitation. 

In  the  people  all  sovereignty  rests.^    In  the  ex- 


T  "  When  we  consider  the  nature  and  the  theory  of  our  institu- 
tions of  government,  the  principles  upon  which  they  are  supposed 
to  rest,  and  review  the  history  of  their  development,  we  are  con* 


REGULATION    OF    COMMEBCB  81 

ercise  of  this  sovereign  power,  the  people,  and  not    Chapter 
the  separate  States,  adopted  the  Federal  Constitn-  ' 

tion  creating  a  national  government,  granting  to  Asare- 
that  government  defined  powers  and  the  power  ^  ^  to  p°^en^ 
make  all  laws  which  shall  be  necessary  and  proper 
for  carrying  into  execution  '*  those  powers.^  It  is 
to  be  observed  that  these  grants  of  power  to  the 
national  government  are  implied  limitations  on  the 
power  of  the  States  to  legislate  on  the  subjects  of 
those  grants,  and  all  power  not  thus  limited  and 
not  expressly  prohibited  to  the  States  by  the  na- 
tional charter,  either  as  originally  adopted  or  by 
the  subsequent  amendments,  remains  in  the  people 
to  be  exercised  by  them  through  the  instrumental- 
ities of  the  several  State  governments.  But  beside 
this  power  that  remains  in  the  people,  because  not 
granted  to  the  national  government  nor  expressly 
prohibited,  is  a  reserved  or  police  power,  or  "^  the 
particular  right  of  a  government  which  is  inherent 
in  every  sovereignty, ' '  ^  and  which  may  be  exercised 
by  the  States  ^  ^  to  protect  the  public  health,  the  pub- 
lic morals,  and  the  public  safety,  by  any  legislation 
appropriate  to  that  end  which  does  not  encroach 
upon  rights  guaranteed  by  the  national  Constitu- 
tion, nor  come  in  conflict  with  Acts  of  Congresv^ 

strained  to  conclude  that  they  do  not  mean  to  leave  room  for  the 
play  and  action  of  purely  personal  and  arbitrary  power.  Sovereignty 
itself  is,  of  course,  not  subject  to  law,  for  it  is  the  author  and 
source  of  law;  but  in  our  system,  while  sovereign  powers  are  dele- 
gated to  the  agencies  of  government,  sovereignty  itself  remains  with 
the  people,  by  whom  and  for  whom  all  government  exists  and  acts. 
And  the  law  is  the  definition  and  limitation  of  power."  Per  Mr. 
Justice  Matthews,  in  Yick  Wo  V.  Hopkins,  (1886)  118  U.  S.  356. 

8  Article  I,  §  8. 

9  Per  Mr.  Justice  Peckham,  in  Lake  Shore,  etc.,  R.  Ck>.  v.  Smith, 
(189»>  173  U.  S.  684. 

6 


82  REGULATION   OF    COMMERCE 

Chapter  passed  in  pursuance  of  that  instrument.  * '  ^  In 
'  Hennington  v.  Georgia,^  Mr.  Justice  Harlan  said 
that  ^^  local  laws  of  the  character  mentioned  have 
their  source  in  the  powers  which  the  States  re- 
served and  never  surrendered  to  Congress,  of  pro- 
viding for  the  public  health,  the  public  morals,  and 
the  public  safety,  and  are  not,  within  the  meaning 
of  the  Constitution,  and  considered  in  their  own 
nature,  regulations  of  interstate  commerce  simply 
because,  for  a  limited  time  or  to  a  limited  extent, 
they  cover  the  field  occupied  by  those  engaged  in 
such  commerce.  ^ ' 

2^^^  It  would  be  impossible  to  state  in  general  terms 

the  extent  of  this  power,  but  as  indicating  some 
measure  of  its  scope,  it  has  been  said  that  *'  the 
police  power  of  a  State  is  as  broad  and  plenary  as 
its  taxing  power;  and  property  within  the  State  is 
subject  to  the  operations  of  the  former  so  long  as  it 
is  within  the  regulating  restrictions  of  the  latter. ' ' ' 
The  constitutional  prohibition  that  ''  no  State 
shall  .  .  .  pass  any  .  .  .  law  impairing  the 
obligation  of  contracts  ''  does  not  only  not  restrict 
the  power  of  a  State  to  protect  the  public  morals, 
the  public  health,  or  the  public  safety,  but  a  State 
legislature  cannot,  by  any  contract,  divest  itself  of 
the  power  to  provide  for  these  objects.* 

Power  to  The  police  power  is  not  limited  to  the  mere  right 

regulate  as  ^  ^  «         o  •  t  t 

Toh¥h°  t^  prohibit  the  doing  of  a  forbidden  act  or  to  com- 
pel the  performance  of  a  prescribed  duty,  but  per- 
mission under  stated  conditions  may  be  a  proper 

1  Per  Mr.   Justice  Harlan,  in  Missouri,  etc.,  R.   Co.  v.  Haber, 
(1898)   169  U.  S.  613. 

2  (1896)  163  U.  S.  299. 

•  Per  Mr.  Justice  Lamar,  in  Kidd  v.  Pearson,  (1888)  128  U.  S.  1. 
4  Wabash  R.  Co.  v.  Defiance,   (1897)    167  U.  S.  88;  Boston  Beer 
Co.  V.  Massachusetts,  (1877)  97  U.  S.  25. 


REGULATION   OF   COMMERCE  83 


manifestation  of  this  power;  in  other  words,  it  in-    Chapter 

eludes,  within  its  appropriate  limits,  the  power  to  

regulate    or    restrict,    as    well    as    the    power    to 
prohibit.^ 

The  Public  Health, 

As  part  of  this  reserved  power  a  State  may  leg-  fJr^^d"of"^ 
islate  for  the  protection  of  the  health  of  the  com-  5?£^"' 
munity.  Preventing  the  spread  of  contagious  dis- 
eases among  animals  is  a  proper  exercise  of  this 
power,  as  by  declaring  a  rule  of  civil  liability  for 
damages  caused  by  transporting  cattle  liable  to 
communicate  disease,^  but  when  the  regulation  is 
beyond  what  is  absolutely  necessary  for  the  Staters 
self -protection,  as  by  excluding  certain  cattle  at 
certain  seasons  whether  diseased  or  not,  it  cannot 
be  so  considered/ 

Statutes  prohibiting  the  manufacture  or  sale  of  ^^^^^ffJo<j 
oleomargarine  colored  in  imitation  of  butter,^  and  p''^'*"^'^- 
prohibiting  the  importation  into  the  State  of  coffee 
so  adulterated  as  to  conceal  damage,^  have  been 
enacted  to  prevent  fraud  and  deception  in  the  sale 
of  food  products,  and  in  the  interest  of  public 
health.  While  a  State  has  power  to  regulate  the 
introduction  of  any  article,  including  a  food  product, 
so  as  to  insure  purity  of  the  article  imported,  it 
cannot,  under  cover  of  exerting  its  police  powers, 
substantially  prohibit  or  burden  either  foreign  or 
interstate  commerce.  Eeasonable  and  appropriate 
laws  for  the  inspection  of  articles,  including  food 
products,  are  valid,  but  absolute  prohibition  of  an 

6  Vance  v.  W.  A.  Vandercook  Co.,  (1898)  170  U.  S.  438. 
« Missouri,  etc.,  R.  Co.  v.  Haber,   (1898)    169  U.  S.  613. 

7  Hannibal,  etc.,  R.  Co.  v.  Husen,   (1877)   95  U.  S.  465. 
«Plumley  v.  Massachusetts,  (1894)    155  U.  S.  461. 

•  Grossman  v.  Lurman,  (1904)  192  U.  S.  189. 


84 


KEGULATIOlSr   OF   COMMERCE 


Chapter 
III. 


unadulterated,  wholesome,  and  pure  article  cannot 
be  permitted  as  a  remedy  against  the  importation  of 
that  which  is  adulterated  and  therefore  unwhole- 
some.^ The  introduction  of  an  article  which  is  not 
adulterated  and  which  in  its  pure  state  is  healthful 
cannot  be  prohibited  simply  because  such  an  article 
in  the  course  of  its  manufacture  may  be  adulterated 
by  dishonest  manufacturers  for  purposes  of  fraud 
or  illegal  gains. 


Peace,  Good  Order,  and  Public  Morals. 

Prevention  State  rcgulatious  having  relation  to  the  peace 
fsm-de?ep-  ^^^  good  ordcr  of  the  commonwealth  and  to  the 
ofTJo/*^*'  promotion  or  preservation  of  public  morals  are 
products,  -^j^]^  ^]^jg  reserved  power.  Precautionary  meas- 
ures against  social  evils,  and  the  prevention  of 
crime  and  pauperism,  by  excluding  objectionable 
persons,^  or  being  concerned  in  the  sale  of  a  lottery 
ticket  though  such  tickets  are  to  be  drawn  in  an- 
other State,^  are  considered  such.  Statutes  for  the 
prevention  of  deception  or  fraud,  as  in  the  sale  of 
food  products,  have  some  relation  to  public  morals 
as  well  as  the  public  health,*  and  are  permissible. 
Statutes  have  been  enacted  in  several  States  pro- 
hibiting the  running  of  freight  trains  on  Sundays. 
In  Hennington  v.  Georgia,^  such  a  statute  was  con- 
sidered as  part  of  the  policy  of  the  State  of  Georgia, 
as  it  was  the  policy  of  many  of  the  original  States, 

1  Schollenberger  v.  Pennsylvania,  (1898)   171  U.  S.  1. 

2  Hannibal,  etc.,  R.  Co.  v.  Husen,  (1877)  95  U.  S.  465;  State  v. 
Stripling,  (1896)  113  Ala.  120;  State  v.  Harbourne,  (1898)  7a 
Conn.  484;  Louisville  v.  WehmhoflT,  (1903)  116  Ky.  812;  Ames  v. 
Kirby,  (1904)  71  N.  J.  L.  442;  Laoey  v.  Palmer,  (1896)  93  Va.  159. 

sRoselle  v.  Fanners'  Bank,  (1897)   141  Mo.  36. 

*  See  supra,  p.  83. 

e  (1896)   163  U.  S.  299. 


REGULATION   OP   COMMERCE  85 

to  prohibit  all  persons,  under  penalties,  from  using    Chapter 
the  Sabbath  as  a  day  for  labor  and  for  pursuing  ' 

their  ordinary  callings.  The  court  said  that  the 
legislature  no  doubt  acted  upon  the  view  that  the 
keeping  of  one  day  in  seven  for  rest  and  relaxation 
was  '''  of  admirable  service  to  a  state,  considered 
merely  as  a  civil  institution. ' '  ^ 

The  Public  Safety, 
The  rules  prescribed  for  the  construction  of  rail-  constnic- 

■^  tion  and 

roads  and  for  their  management  and  operation,  de-  oFSuwiVs. 
signed  to  protect  persons  and  property  otherwise 
endangered  by  their  use,  are  strictly  within  the 
scope  of  the  local  law,  provided  they  do  not  directly 
burden  or  impede  interstate  traffic  or  impair  the 
usefulness  of  the  facilities  for  such  traffic.^ 

A  State  may  require  an  examination  for  fitness 
to  act  as  a  locomotive  engineer,^  and  the  examina- 
tion of  railroad  employees  generally  for  color  blind- 
ness.^ So  also  a  statute  directing  guards  and  guard 
posts  to  be  placed  on  railroad  bridges  and  trestles 
and  the  approaches  thereto,  and  prescribing  a  mode 
of  heating  passenger  cars,  has  been  held  a  proper 
exercise  of  this  power.  Possible  inconveniences  can- 
not affect  the  question  of  the  power  in  each  State  to 
make  such  reasonable  regulations  for  the  safety  of 
passengers  as  in  its  judgment,  all  things  considered, 
are  appropriate  and  effective.^     Until  displaced  by 

«  4  Bl.  Com.  *63. 

T  Chicago,  etc.,  R.  Co.  v.  Solan,  (1898)  169  U.  S.  133;  Illinois 
Cent.  R.  Co.  v.  Illinois,   (1896)    163  U.  S.  142. 

8  Smith  V.  Alabama,   (1888)    124  U.  S.  465. 

•  Nashville,  etc.,  R.  Co.  v.  Alabama,  (1888)    128  U.  S.  96. 

1 "  Inconveniences  of  this  character  cannot  be  avoided  so  long 
«8  each  State  has  plenary  authority  within  its  territorial  limits 
to  provide  for  the  safety  of  the  public,  according  to  its  own  views 


86 


BEGULATION    OF   COMMERCE 


aapt 


Chapter  express  legislation  of  Congress,  such  State  laws 
govern  carriers  in  the  discharge  of  their  obligations 
whether  engaged  in  purely  internal  commerce  of  the 
State,  or  in  commerce  among  the  States. 


Recognized 
element  of 
police 
power. 


Reflating 
business  of 
transporta- 
tion and 
communi- 
cation. 


The  Public  Convenience, 

The  States  may  legislate  not  only  with  refer- 
ence directly  to  the  public  health,  the  public  morals, 
or  the  public  safety,  but  also  with  reference  simply 
to  the  public  convenience,  subject  of  course  to  the 
condition  that  such  legislation  be  not  inconsistent 
with  the  national  Constitution,  nor  with  any  Act  of 
Congress  passed  in  pursuance  of  that  instrument, 
nor  in  derogation  of  any  right  granted  or  secured 
by  it. 

This  branch  of  the  police  power  seems  generally 
to  be  exercised  and  recognized  in  making  regula- 
tions for  the  government  of  corporations  occupied 
in  the  business  of  transportation  and  communica- 
tion, like  railroad  and  telegraph  companies,  and 
tvhich  are  engaged  in  a  public  employment  affecting 
I,  public  interest.  Regulating  the  stoppage  of  trains 
at  designated  places,^  and  requiring  railway  com- 
panies to  fix  their  rates  annually  for  the  transpor- 
tation of  passengers  and  freight,  and  also  requiring 
them  to  post  a  printed  copy  of  such  rates  at  all  their 
stations,^  may  be  considered  as  legislation  having 

of  necessity  and  public  policy,  and  so  long  as  Congress  deems  it  wise 
not  to  establish  regulations  on  the  subject  that  would^displace  any 
inconsistent  regulations  of  the  States  covering  the  same  ground." 
Per  Mr.  Justice  Harlan,  in  New  York,  etc.,  R.  Co.  v.  New  York, 
(1897)  165  U.  S.  628. 

2  Lake  Shore,  etc.,  R.  Co.  v.  Ohio,  (1899)  173  U.  S.  285;  Gladson 
V.  Minnesota,  (1897)   166  U.  S.  427. 

8  Chicago,  etc.,  R.  Co.  v.  Fuller,    (1873)    17   Wall.    (U.  S.)    560. 

See  also  Gulf,  oto.,  R.  Co.  V.  Hefley,  (1895)   158  U.  S.  98,  as  to. 


REGULATION    OF    COMMERCE  87 

in  mind  the  convenience  of  the  public.    The  States    Chapter 
may  also  require  telegraph  companies  to  receive,  ' 

and  to  transmit  and  deliver  with  due  diligence, 
messages  from  places  either  within  or  without  the 
State,*  and  may  make  all  necessary  provisions 
with  respect  to  the  buildings,  poles,  and  wires  of 
telegraph  companies  in  its  jurisdiction  which  the 
comfort  and  convenience  of  the  community  may 
require.^ 

As  serving  the  convenience  of  the  public.  State  Jj^jJ^^JJJ'' 
legislation  authorizing  the  construction  of  a  perma-  o?bJidgeS 
nent  bridge  over  a  river  within  the  State,  when  the 
bridge  in  fact  interfered  with  the  use  of  the  river 
by  vessels  of  a  certain  size  which  had  long  been 
accustomed  to  navigate  it,^  and  regulating  the  open- 
ing and  closing  of  bridges  over  a  river  within  the 
State,"^  as  also  authorizing  the  erection  of  piers  and 
booms  in  a  navigable  river  within  the  State,^  is 
within  this  part  of  the  police  power,  and  may  be 
allowed  to  operate  in  the  absence  of  federal 
direction. 

Invading  Exclusive  Power  of  Congress. 

Whatever  the  reason  given  or  the  object  to  be 
attained,  the  acknowledged  police  power  of  a  State 

a  similar  statute,  in  which  case  Mr.  Justice  Brewer  said :  "  It  may 
be  conceded  that  were  there  no  congressional  legislation  in  respect 
to  the  matter,  the  State  Act  could  be  held  applicable  to  interstate 
shipments  as  a  police  regulation." 

*  Western  Union  Tel.  Co.  v.  James,   (1896)    162  U.  S.  650. 

But  a  State  may  not  regulate  the  delivery  of  messages  outside 
the  State  sent  from  points  within  the  State.  Western  Union  Tel. 
Co.  V.  Pendleton,   (1887)    122  U.  S.  347. 

6  Western  Union  Tel.  Co.  v.  Pendleton,   (1887)    122  U.  S.  347. 

«Cardwell  v.  American  Bridge  Co.,  (1885)  113  U.  S.  205;  Oil- 
man V.  Philadelphia,  (1865)   3  Wall.   (U.  S.)   713. 

TEscanaba,  etc.,  Transp.  Co.  v.  Chicago,   (1882)   107  U.  S.  678. 

« Pound  V.  Turck,  (1877)  95  U.  S.  459. 


88 


REGULATION    OF   COMMERCE 


Chapter 


Direct  in- 
terference 
with  mat- 
ters in  ex- 
clusive 
jurisdic- 
tion of 
Congress. 


With  par- 
ticular 
reference 
to  transpor- 
tation. 


cannot  legitimately  be  exerted  so  as  substantially  to 
prohibit  or  unnecessarily  to  burden  either  foreign  or 
interstate  commerce.  It  cannot  be  exercised  so  as 
to  trench  directly  upon  that  part  of  the  power  to 
regulate  interstate  and  foreign  commerce  which  is 
within  the  exclusive  jurisdiction  of  Congress,  any 
more  than  to  defeat  or  impair  a  statute  passed  by 
Congress  relating  to  that  part  of  the  power  upon 
which  the  States  may  legislate  under  the  nonaction 
of  Congress  doctrine.^  As  was  said  by  Chief  Jus- 
tice Fuller,  in  Leisy  v.  Hardin,^  '^  While,  by  virtue 
of  its  jurisdiction  over  persons  and  property  within 
its  limits,  a  State  may  provide  for  the  security  of 
the  lives,  limbs,  health  and  comfort  of  persons  and 
the  protection  of  property  so  situated,  yet  a  sub- 
ject-matter which  has  been  confided  exclusively  to 
Congress  by  the  Constitution  is  not  within  the 
jurisdiction  of  the  police  power  of  the  State,  unless 
placed  there  by  congressional  action. ' ' 

The  matters  which  are  within  the  exclusive 
control  of  Congress,  as  resulting  from  the  grant  of 
power  to  that  body,  have  been  referred  to  in  a 
general  way  in  another  part  of  this  book,^  but  in 
this  connection  it  may  be  recalled  that  they  relate 
mainly  to  the  right  of  interstate  transportation 
and  of  the  exchange  of  commodities.  In  Austin  v. 
Tennessee,^  wherein  it  was  held  that  the  law  of 
Tennessee  prohibiting  the  sale  of  cigarettes  could 
not  be  evaded  by  the  importation  from  another 


» Schollenberger  v.  Pennsylvania,  (1898)  171  U.  S.  1;  Brennan 
v.  Titusville,  (1894)  153  U.  S.  289;  Missouri,  etc.,  R.  Co.  v.  Haber, 
(1898)  169  U.  S.  613;  Hannibal,  etc.,  R.  Co.  v.  Husen,  (1877)  «5 
U.  S.  466;  Gibbons  v.  Ogden,  (1824)  9  Wbeat.  (U.  S.)   1. 

1  (1890)  135  U.  S.  100. 

2  See  supra,  p.  68. 

•  (1900)   179  U.  S.  343. 


EEGCJixA.TION  OP    COMMERCE  89 

State  of  cigarettes  in  packages  too  small  to  be  con-    Chapter 
sidered  original  packages,  Mr.  Justice  Brown,  in  tlie  ' 

opinion  of  the  conrt,  said :  ^  *  The  doctrine  that  the 
silence  of  Congress  as  to  what  property  may  be  of 
right  carried  from  one  State  to  another  means  that 
every  article  of  commerce  may  be  carried  into  one 
State  from  another  and  there  sold,  ought  not  to 
be  extended  so  as  to  embrace  articles  which  may 
not  imreasonably  be  deemed  injurious  in  their  use 
to  the  health  of  the  people.  If  this  be  not  so,  it 
follows  that  the  reserved  power  of  the  State  to  pro- 
tect the  health  of  its  people,  by  reasonable  regula- 
tions, has  application  only  in  respect  of  articles 
manufactured  within  its  own  limits,  and  that  an 
open  door  exists  for  the  introduction  into  the  State, 
against  its  will,  of  all  kinds  of  property  which  may 
be  fairly  regarded  as  injurious  in  their  use  to  health. 
If  Congress  have  power  to  declare  what  property 
may  and  what  may  not  be  brought  into  one  State 
from  another  State,  then  the  action  of  a  State  by 
which  certain  articles,  not  unreasonably  deemed  in- 
jurious to  health,  were  excluded  from  its  markets, 
should  stand  until  Congress  legislated  upon  the  sub- 
ject. If  Congress  possesses  no  such  power,  it  is 
because  the  framers  of  the  Constitution  never  in- 
tended that  the  mere  grant  of  power  to  regulate 
commerce  should  override  the  power  reserved  by 
the  States  to  pass  laws  that  had  substantial  rela- 
tions to  the  health  of  their  people.  Of  course,  it  is 
one  thing  to  force  into  a  State,  against  its  will, 
articles  or  commodities  that  can  have  no  possible 
connection  with  or  relation  to  the  health  of  tiie 
people.  It  is  quite  a  different  thing  to  force  into 
the  markets  of  a  State,  against  its  will,  articles  or 
commodities  which,  like  cigarettes,  may  not  unrea- 
sonably be  held  to  be  injurious  to  health. '' 


90 


EEGULATION    OF    COMMERCE 


Chapter 
III. 


Exercised 
over  the 
instrumen- 
talities of 
transporta- 
tion. 


Direct  con- 
flict with 
Acts  of 
Congress. 


While  the  police  power  cannot  be  exercised  over 
a  subject  confided  exclusively  to  Congress  —  such 
as  commerce  itself  —  that  power  may  be  exercised 
with  respect  to  the  instrumentalities  of  such  com- 
merce. In  Louisville,  etc.,  R.  Co.  v.  Kentucky,^  Mr. 
Justice  Brown  clearly  distinguished  between  the 
exclusive  power  of  Congress  with  respect  to  com- 
merce itself  and  the  subordinate  power  of  the  States 
over  the  instrumentalities  of  commerce,  and  said 
that  ^*  it  has  never  been  supposed  that  the  domi- 
nant power  of  Congress  over  interstate  commerce 
took  from  the  States  the  power  of  legislation  with 
respect  to  the  instruments  of  such  commerce,  so  far 
as  the  legislation  was  within  its  ordinary  police 
powers.  Nearly  all  the  railways  in  the  country 
have  been  constructed  under  State  authority,  and 
it  cannot  be  supposed  that  they  intended  to  abandon 
their  power  over  them  as  soon  as  they  were  finished. 
The  power  to  construct  them  involves  necessarily 
the  power  to  impose  such  regulations  upon  their 
operation  as  a  sound  regard  for  the  interests  of  the 
public  may  seem  to  render  desirable.  In  the 
division  of  authority  with  respect  to  interstate  rail- 
ways Congress  reserves  to  itself  the  superior  right 
to  control  their  commerce  and  forbid  interference 
therewith ;  while  to  the  States  remains  the  power  to 
create  and  to  regulate  the  instruments  of  such  com- 
merce, so  far  as  necessary  to  the  conservation  of 
the  public  interests.'* 

When  a  State  statute  has  been  enacted  in  pur- 
suance of  this  reserved  police  power,  on  a  subject 
not  within  the  exclusive  power  of  Congress,  it  must 
nevertheless  yield  in  the  execution  of  its  provisions 
in  case  of  conflict  with  an  Act  of  Congress  constitu- 


♦  (1896)   161  U.  S.  677. 


REGULATION    OF   COMMERCE  91 

tionally  enacted,  when  the  repugnance  is  so  direct    Chapter 
and  positive  that  the  two  acts  cannot  be  reconciled  ' 

or  stand  together.^  And  in  line  with  the  idea  that 
the  conflict  between  State  and  federal  legislation 
must  be  positive  to  have  the  effect  of  invalidating 
State  statutes,  it  has  been  said  that,  '^  although  the 
power  of  Congress  to  regulate  commerce  among  the 
States,  and  the  power  of  the  States  to  regulate  their 
purely  domestic  affairs,  are  distinct  powers,  which, 
in  their  application,  may  at  times  bear  upon  the 
same  subject,  no  collision  that  would  disturb  the 
harmony  of  the  national  and  State  governments  or 
produce  any  conflict  between  the  two  governments 
in  the  exercise  of  their  respective  powers  need  occur, 
unless  the  national  government,  acting  within  the 
limits  of  its  constitutional  authority,  takes  under  its 
immediate  control  and  exclusive  supervision  the 
entire  subject  to  which  the  State  legislation  may 
refer.'' ^ 

Incidental  Effect  of  Invading  Exclusive  Power  of 
Congress. 

It  has  been  heretofore  remarked  that  the  police  indirect 

^  and  remote 

power  of  a  State  cannot  legitimately  be  exerted  so 
as  substantially  to  prohibit  or  unnecessarily  to  bur- 
den either  foreign  or  interstate  commerce.  But  the 
interference  with  the  commercial  power  of  the  gen- 
eral government  to  be  unlawf^ul  must  be  direct  and 
not  the  mere  incidental  effect  of  enforcing  the  police 
powers  of  the  State.     If  the  State  law  in  its  opera- 

»  Missouri,  etc.,  R.  Co.  v.  Haber,  (1898)  169  U.  S.  613;  Sinnot 
V.  Davenport,   (1859)  22  How.  (U.  S.)    227. 

« Per  Mr.  Justice  Harlan,  in  Missouri,  etc.,  R.  Co.  v.  Haber, 
(1868)  169  U.  S.  613.  See  also  Reid  v.  Colorado,  (1902)  187  U.  S. 
137. 


fcrence. 


92  REGULATION  OF   COMMEECE 

Cha^r  tion  affects  interstate  or  foreign  commeree  only  in- 
'  directly  and  remotely,  and  is  otherwise  unobjection- 
able, it  is  validJ  With  respect  to  police  regulation 
of  interstate  railways,  Mr.  Justice  Brown,  in  Louis- 
ville, etc.,  R.  Co.  V.  Kentucky,^  remarked :  '  *  All  such 
regulations  interfere  indirectly,  more  or  less,  with 
commerce  between  the  States,  in  the  fact  that  they 
impose  a  burden  upon  the  instruments  of  such  com- 
merce, and  add  something  to  the  cost  of  transporta- 
tion, by  the  expense  incurred  in  conforming  to  such 
regulations.  These  are,  however,  like  the  taxes 
imposed  upon  railways  and  their  rolling  stock, 
which  are  more  or  less,  according  to  the  policy  of 
the  State  within  which  the  roads  are  operated,  but 
are  still  within  the  competency  of  the  legislature  to 
impose.  It  is  otherwise,  however,  with  respect  to 
taxes  upon  their  franchises  and  receipts  from  inter- 
state commerce,  which  are  treated  as  a  direct 
burden. ' ' 
insgncesof  A  f cw  of  the  many  ways  by  which  the  exercise 
fSence.  ^f  this  powcr  incidentally  affects  commerce  may  be 
mentioned  by  way  of  illustration.  Eegulating  the 
speed  of  trains,  including  interstate  trains,  within 
city  limits,^  and  the  rates  of  fare  and  freight  of  a 
railroad  situated  within  the  limits  of  the  State;* 

7  "  If  the  action  of  the  State  legislature  were  a  hona  fide  exercise 
of  its  police  power,  and  dictated  by  a  genuine  regard  for  the  preser- 
vation of  the  public  health  or  safety,  such  legislation  would  be  re- 
spected, though  it  might  interfere  indirectly  with  interBtate  com- 
merce." Per  Mr.  Justice  Brown,  in  Austin  v.  Tennessee,  (1900)  179 
U.  S.  343.  See  also  Field  v.  Barber  Asphalt  Paving  Co.,  (1904)  194 
U.  S.  618;  Smith  v.  Alabama,  (1888)  124  U.  S.  465;  Hall  v.  De 
Cuir,  (1877)  95  U.  S.  485. 

8  (1896)    161  U.  S.  677. 

»Erb  V.  Morasch,  (1900)  177  U.  S.  684;  Cruteher  «.  Kentucky, 
(1891)   141  U.  S.  47. 

1- Chicago,  «tc.,  R.  Oo.  v.  Iowa,  0876)  94  U.  S.  155. 

The  enforcement  of  a  State  regulation  forbidding  discriminatioil 


REGULATION    OF   COMMERCE  93 

prohibiting    the     running    of    freight    trains    on    Chapter 

Sunday ;  -  promoting  the  safety  and  comfort  of  pas-  

sengers,  employees,  persons  crossing  railroad  tracks, 
and  adjacent  property  owners ;  ^  and  establishing  a 
rule  of  evidence  ordaining  the  character  of  proof 
by  which  a  carrier  may  show  that,  although  it  re- 
ceived goods  for  transportation  beyond  its  own 
line,  nevertheless,  by  agreement,  its  liability  was 
limited  to  its  own  line,*  may  be  said  to  affect  inter- 
state transportation  to  some  extent  or  for  a  limited 
time.  And  general  legislation  of  a  State  as  it  may 
declare  liability  for  torts  committed  on  land  or  water 
is  not  open  to  any  valid  objection  because  it  may 
affect  persons  engaged  in  foreign  or  interstate  com- 
merce.^ Until  displaced  by  regulations  adopted  by 
the  general  government,  such  State  laws  operate 
both  upon  the  purely  internal  commerce  of  the  State 
and  upon  the  commerce  among  the  States  and  with 
foreign  countries. 

While  the  power  of  the  State  to  adopt  police  f^l^'^'iff^^ 
regulations  which  may  incidentally  burden  com- 
merce is  admitted,  the  power  is  occasionally  so  exer- 
cised as  to  be  an  aid  to  rather  than  a  burden  on 
commerce.  There  are  many  occasions  where  the 
police  power  of  the  State  can  be  properly  exercised 
to  insure  a  faithful  and  prompt  performance  of  duty 
within  the  limits  of  the  State  upon  the  part  of  those 

in  rates  in  the  case  of  articles  of  a  like  kind  carried  for  different  dis- 
tances over  the  same  line  may  somewhat  affect  commerce  generally,^ 
but  such  result  is  too  remote  and  indirect  to  be  regarded  as  an  in- 
terference with  interstate  commerce.  Louisville,  etc.,  R.  Co.  v.  Ken- 
tucky,  (1902)    183  U.  S.  503. 

zHennington  v.  Georgia,  (1896)   163  U.  S.  299. 

3  Pennsylvania  R.  Co.  v.  Hughes,   (1903)   191  U.  S.  477. 

4  Richmond,  etc.,  R.  Co.  v.  R.  A.  Patterson  Tobacco  Co.,   (1898) 
169  U.  S.  311. 

6  Sherlock  v.  Ailing,  (1876)  93  U.  S.  99. 


commerce. 


94 


REGULATION    OF   COMMERCE 


Chapter 
III. 


In  further- 
ance of  a 
federal 
policy. 


who  are  engaged  in  interstate  commerce.  Especially 
is  this  so  with  respect  to  regulations  having  in  view 
the  convenience  of  the  public,  as  in  enforcing  track 
connections  between  two  railroads,^  and  to  rules 
for  the  safety  of  persons  and  property.  They  are 
rather  to  be  regarded  as  legislation  in  aid  of  com- 
merce, and  are  considered  with  special  favor  by 
the  courts."^ 

The  same  quality,  as  an  aid  to  commerce,  may 
attach  to  State  legislation  which,  instead  of  being 
in  conflict  with  an  Act  of  Congress,  is  in  furtherance 
of  a  declared  federal  policy  with  respect  thereto. 
A  State  statute  declaring  a  rule  of  civil  liability  for 
damages  caused  by  transporting  cattle  liable  to  com- 
municate disease  is  one  in  aid  of  the  Animal  Indus- 
try Act,^  providing  means  for  the  prosecution  and 
cure  of  contagious  diseases  of  domestic  animals  and 
regulating  the  examination  and  transportation  of 
animals  so  affected.^ 


Reasonableness   of  Its   Exercise   as   the   Supreme 

Test. 

But  when  a  State  statute  has  been  enacted  which 
may  be  said  to  have  relation  to  the  public  morals, 
the  public  health,  the  public  safety,  or  the  public 
convenience,  the  subject  of  which  is  not  within  the 
exclusive  power  of  Congress  or  which  in  its  opera- 
tion does  not  conflict  with  an  Act  of  Congress,  the 
last  and  supreme  test  is  that  of  reasonableness. 
Indefinable.  Wanting  iu  cxactuess  as  the  whole  subject  of  police 
power  is,   this  final   test  of  reasonableness   lacks 

•  Wisconsin,  etc.,  R.  Co.  v.  Jacobson,  (1900)   179  U.  S.  287. 
T  Chicago,  etc.,  R.  Co.  v.  Solan,  (1898)   169  U.  S.  133. 

»  Act  of  Congress  of  May  29,  1884,  c.  60;  1  Fed.  Stat.  Annot.  451. 

•  Missouri,  etc.,  R.  Co.  v.  Haber,  (1898)  169  U.  S.  613. 


REGULATION    OF    COMMERCE  95 

definiteness  more  than  any  other  element,  for  ^^  the    Chapter 
exact  limit  of  lawful  legislation  upon  this  subject  ' 

cannot  in  the  nature  of  things  be  deJSned.  It  can 
only  be  illustrated  from  decided  cases,  by  applying 
the  principles  therein  enunciated,  determining  from 
these  whether  in  the  particular  case  the  rule  be  rea- 
sonable or  otherwise. ' '  ^  A  statute  passed  in  pursu- 
ance of  any  of  the  purposes  for  which  this  power 
may  be  exercised  must  have  a  real  or  substantial 
relation  to  the  object  for  which  it  was  enacted,  and 
if  it  unreasonably  or  unnecessarily  hampers  com- 
merce between  the  States,  or  fails  to  make  allowance 
for  the  practical  difficulties  in  the  administration  of 
the  law,  it  cannot  be  approved. 

A  comparison  of  the  Cleveland,  etc.,  R.  Co.  v.  ^J°Paiffat 
Illinois,^  Gladson  v.  Minnesota,^  and  Illinois  Cent.  R.  statfons. 
Co.  V.  Illinois  *  cases,  referred  to  in  another  part 
of  this  work,^  respecting  statutes  requiring  rail- 
roads to  stop  passenger  trains  at  certain  stations, 
will  give  some  idea  as  to  what  have  been  held  to  be 
reasonable  and  unreasonable  regulations  on  similar 
matters. 

In  Houston,  etc.,  R.  Co.  v.  Mayes  ^  attention  was  J^^S^u) 
particularly  called  to  the  practical  difficulties  of  supply  cars. 
administering  the  law  under  consideration.  In  that 
case,  a  Texas  statute,  the  material  requirement  of 
which  was  that  when  the  shipper  of  freight  should 
make  a  requisition  in  writing  for  a  number  of  cars 
to  be  furnished  at  any  point  indicated  within  a  cer- 

1  Per   Mr.   Justice   Brown,   in   Hpuston,   etc.,  R.   Co.    v.   Mayes, 
(1906)   201  U.  S.  321. 

2  (1900)    177  U.  S.  514. 

3  (1897)   166  U.  S.  427. 

4  (1896)   163  U.  S.  142. 

5  See  infra,  pp.  165-167. 
e  (1906)  201  U.  S.  321. 


96  BEGULATION    OF    COMMERCE 

Chapter  tain  number  of  days  from  the  receipt  of  the  applica- 
'  tion,  and  should  deposit  one-fourth  of  the  freight 
with  the  agent  of  the  company,  the  company  failing 
to  furnish  them  should  forfeit  twenty-five  dollars  per 
day  for  each  car  failed  to  be  furnished,  the  only 
proviso  being  that  the  law  ^  *  shall  not  apply  in  cases 
of  strikes  or  other  public  calamity,"  was  held  to  be 
invalid  as  applied  to  cars  required  for  interstate 
shipments;  and  the  court,  admitting  that  there  is 
much  to  be  said  in  favor  of  laws  compelling  rail- 
roads to  furnish  adequate  facilities  for  the  trans- 
portation of  both  freight  and  passengers,  and  to 
regulate  the  general  subject  of  speed,  length  and  fre- 
quency of  stops,  the  heating,  lighting,  and  ventila- 
tion of  passenger  cars,  and  the  furnishing  of  food 
and  water   to   cattle   and   other   live    stock,    said. 

Making  re-   through  Mr.  Justicc  Brown :    ^ '  We  think  an  absolute 

quireraents  .  .  . 

absolute,  reqmrement  that  a  railroad  shall  furnish  a  certam 
number  of  cars  at  a  specified  day,  regardless  of 
every  other  consideration  except  strikes  and  other 
public  calamities,  transcends  the  police  power  of  the 
State  and  amounts  to  a  burden  upon  interstate  com- 
merce. It  makes  no  exception  in  cases  of  a  sudden 
congestion  of  traffic,  an  actual  inability  to  furnish 
cars  by  reason  of  their  temporary  and  unavoidable 
detention  in  other  States,  or  in  other  places  within 
the  same  State.  It  makes  no  allowance  for  inter- 
ference of  traffic  occasioned  by  wrecks  or  other 
accidents  upon  the  same  or  other  roads,  involving. 
a  detention  of  traffic,  the  breaking  of  bridges,  acci- 
dental fires,  washouts,  or  other  unavoidable  conse- 
quences of  heavy  weather.  .  .  .  While  railroad 
companies  may  be  bound  to  furnish  sufficient  cars 
for  their  usual  and  ordinary  traffic,  cases  will 
inevitably  arise  where,  by  reason  of  an  unexpected 


reason- 
able effect. 


REGULATION   OF   COMMERCE  97 

turn  in  the  market,  a  great  public  gathering,  or  an    Chapter 
unforeseen  rush  of  travel,  a  pressure  upon  the  road  ' 

for  transportation  facilities  may  arise,  which  good 
management  and  a  desire  to  fulfil  all  its  legal  re- 
quirements cannot  provide  for,  and  against  which 
the  statute  in  question  makes  no  allowance." 

While  the  presumption  that  a  statute  was  en-  Presump- 
tion of  good 

acted  in  good  faith,  for  any  of  the  purposes  for  fSft^y"^^-' 
which  this  power  can  be  exercised,  may  and  should  ^^™'"*'* 
be  indulged,  yet  its  operation  and  validity  must  be 
determined  by  its  natural  and  reasonable  effect,^ 
and  this  presumption  cannot  control  the  final  deter- 
mination of  the  question  whether  it  is  not  repugnant 
to  the  Constitution  of  the  United  States.  **  There 
may  be  no  purpose  upon  the  part  of  a  legislature  to 
violate  the  provisions  of  that  instrument,  and  yet 
a  statute  enacted  by  it,  under  the  forms  of  law, 
may,  by  its  necessary  operation,  be  destructive  of 
rights  granted  or  secured  by  the  Constitution.  In 
such  cases  the  courts  must  sustain  the  supreme  law 
of  the  land  by  declaring  the  statute  unconstitutional 
and  void."^ 

INSPECTION    LAWS. 

One  of  the  clauses  of  section  10,  Article  I,  of  the 
Constitution  provides  that  *'  no  State  shall,  without 
the  consent  of  the  Congress,  lay  any  imposts  or 
duties  on  imports  or  exports,  except  what  may  be 
absolutely  necessary  for  executing  its  inspection 
laws. ' '  ^     The  clause  is  a  constitutional  recognition 

7  Henderson  v.  New  York,  (1875)  92  U.  S.  259. 

sPer  Mr.  Justice  Harlan,  in  Minnesota  v.  Barber,  (1890)  136 
U.  S.  313. 

9  This  prohibition  on  the  power  of  the  States  to  "  lay  any  imposts 
or  duties  on  imports  or  exports  "  is  discussed  in  another  part  of  this 
work,  and  it  is  there  shown  that  the  words  "imports"  and  "ex- 
7 


98  REGULATION    OF    COMMERCE 

Chapter    of  the  power  of  the  States  to  enact  inspection  laws 

'       with  respect  to  goods  imported  from  and  to  be 

exported  to  foreign  countries,  and  a  similar  power 

has  been  construed  into  the  commerce  clause  with 

regard  to  commerce  between  the  States  as  part  of 

2J«^  they  the  police  power  of  the  State.    Whenever  inspection 

*^-  laws  act  on  a  subject  before  it  becomes  an  article  of 

commerce,  they  are  confessedly  valid  as  matters  of 
domestic  concern.  They  may  also  be  made  to 
operate  upon  articles  brought  from  one  State  into 
another  for  the  purpose  of  determining  their  fitness 
for  domestic  use,  and  in  so  doing  protecting  the  citi- 
zens from  fraud.* 

fljnderthe  So  far  as  the  above-quoted  clause  is  concerned, 

imports  or  -^ 

^n^f  inspection  laws  operating  on  articles  intended  for 
export  or  for  domestic  use  **  are  confined  to  such 
particulars  as,  in  the  estimation  of  the  legislature 
and  according  to  the  customs  of  trade,  are  deemed 
necessary  to  fit  the  inspected  article  for  the  market, 
by  giving  to  the  purchaser  public  assurance  that 
the  article  is  in  that  condition,  and  of  that  quality, 
which  makes  it  merchantable  and  fit  for  use  or  con- 
sumption. They  are  not  founded  on  the  idea  that 
the  things  in  respect  to  which  inspection  is  required 
are  dangerous  or  noxious  in  themselves. '  ^  ^  In 
Turner  v.  Maryland,^  the  court,  through  Mr.  Justice 
Blatchford,  said:  **  Eecognized  elements  of  inspec- 
^  tion  laws  have  always  been  quality  of  the  article, 

I  form,  capacity,  dimensions,  and  weight  of  package, 

•  ports"    refer    only  to   articles    imported    and   exported   to   foreign 

J  countries.     See  vnfra,  p.  264. 

^  1  Patapsco  Guano  Co.  v.  North  Carolina  Board  of  Agriculture, 

(1898)   171  U.  S.  345. 

2  Per  Mr.  Justice  Matthews,  in  Bowman  v.  Chicago,  etc.,  R,  Co., 
:  ilSSB)   125  U.  S.  465. 

«  (1882)  107  U.  S.  38. 


REGULATION   OF   COMMERCE  99 


mode  of  putting  up,   and  marking  and  branding    Chapter 
of  various  kinds,  all  these  matters  being  supervised  ' 

by  a  public  of&cer  having  authority  to  pass  or  not 
pass  the  article  as  lawful  merchandise,  as  it  did  or 
did  not  answer  the  prescribed  requirements.  It  has 
never  been  regarded  as  necessary,  and  it  is  mani- 
festly not  necessary,  that  all  of  these  elements 
should  coexist  in  order  to  make  a  valid  inspection 
law.  Quality  alone  may  be  the  subject  of  inspec- 
tion, without  other  requirement,  or  the  inspection 
may  be  made  to  extend  to  all  of  the  above  matters. ' ' 

Under  the  commerce  clause,  to  ascertain  the  fit-  Must  be 

appiopnate 

ness  of  articles,  including  food  products,  for  use,  IgfJ*^^®"* 
inspection  laws  must  be  appropriate  and  reasonable, 
and  the  absolute  prohibition  of  an  unadulterated, 
healthful,  and  pure  article,  or  one  universally  recog- 
nized as  harmless,  cannot  be  permitted  as  a  remedy 
against  the  importation  of  that  which  is  adulterated 
or  harmful.*  The  right  to  sell  articles  imported 
into  a  State  in  the  original  packages  does  not  inter- 
fere with  the  acknowledged  right  of  the  State  to  use 
such  means  as  may  be  necessary  to  prevent  the 
introduction  of  an  adulterated  article,^  and  though 
the  operation  of  the  laws  may  in  some  cases  in  a 
slight  degree  affect  commerce,  they  cannot  be  prop- 
erly designated  as  regulations  of  commerce  when 
they  serve  the  convenience  and  comfort  of  the  in- 
habitants of  the  State  in  the  conduct  of  their  busi- 
ness.^ Kequiring  articles  to  be  carried  to  a  State 
warehouse  for  inspection  is  not  unreasonable,'^  and 
a  statute  providing  for  the  appointment  of  gangers 

*  SchoUenberger  v.  Pennsylvania,   (1898)    171  U.  S.  1;  Austin  v. 
Tennessee,  (1900)   179  U.  S.  343. 

B  SchoUenberger  v.  Pennsylvania,   (1898)   171  U.  S.  1. 

e  Pittsburg,  etc..  Coal  Co.  v.  Louisiana,   (1895)    156  U.  S.  590. 

T  Turner  v.  Maryland,  (1882)  107  U.  S.  38. 


100  REGULATION   OF   COMMERCE 


Chapter    of  coal  and  coke  boats  and  prescribing  a  rule  by 
'       which  the  capacity  of  the  carrying  vessels  can  be 


determined  does  not  conflict  with  the  power  vested 

in  Congress  over  commerce.^ 
Cannot  But  an  inspcction  law  cannot  be  made  to  operate 

2§^an?e*'^of  in  advancc  of  the  actual  importation  of  the  goods 

itnporta- 

tion.  to  be  inspected,  so  as  to  cut  off  the  right  of  a  citizen 

to  ship  articles  of  commerce  to  another  State.  One 
of  a  series  of  dispensary  laws  of  the  State  of  South 
Carolina  provided,  in  part,  that  a  sample  of  the 
liquor  proposed  to  be  shipped  into  the  State  should 
be  sent  to  a  State  officer  for  analysis  in  advance  of 
the  shipment,  and  that  a  certificate  of  the  officer 
should  be  attached  to  the  package  containing  the 
liquor  when  it  was  shipped  into  the  State.  In  Vance 
V.  W.  A,  Vandercook  Co.^  the  court,  Mr.  Justice 
White  writing  the  opinion,  said  that  the  statute 
**  deprives  any  nonresident  of  the  right  to  ship  by 
means  of  interstate  commerce  any  liquor  into  South 
Carolina  unless  previous  authority  is  obtained  from 
the  officers  of  the  State  of  South  Carolina.  On  the 
face  of  these  regulations,  it  is  clear  that  they  sub- 
ject the  constitutional  right  of  the  nonresident  to 
ship  into  the  State  and  of  the  resident  in  the  State 
to  receive  for  his  own  use,  to  conditions  which  are 
wholly  incompatible  with  and  repugnant  to  the  ex- 
istence of  the  right  which  the  statute  itself  acknowl- 
edges. The  right  of  the  citizen  of  another  State  to 
avail  himself  of  interstate  commerce  cannot  be  held 
to  be  subject  to  the  issuing  of  a  certificate  by  an 
officer  of  the  State  of  South  Carolina  without  ad- 
mitting the  power  of  that  officer  to  control  the  exer- 
cise of  the  right. '  * 

•  Pittsburg,  etc.,  Coal  Co.  v.  Louisiana,  (1895)   166  U.  B.  690. 
»  (1898)   170  U.  S.  438. 


REGULATION   OF    COMMERCE  101 

When  it  is  not  asserted  that  a  particular  police    Chapter 
regulation  is  invalid,  a  finding  of  fact  by  a  commis-  ' 

sioner,  acting  in  the  discharge  of  his  duty  under  the  f^^^^  o^^ 
law,  that  a  brand  of  coffee  is  so  prepared  as  to  con-  idmimstra- 
ceal  damage  or  inferiority,  does  not  in  itself  consti-  """^  °*"*^* 
tute  such  a  direct  interference  with  interstate  com- 
merce as  to  give  a  Circuit  Court,  as  a  court  of  the 
United  States,  jurisdiction  on  the  ground  of  diverse 
citizenship.  '^  The  suggested  controversy  was 
purely  hypothetical  and  based  the  supposed  consti- 
tutional objections  on  the  contingency  that,  on  issues 
of  fact,  it  might  be  judicially  determined  that  Ariosa 
came  within  the  statute,  which  complainants  denied. 
If  the  commissioner's  conclusions  were  erroneous, 
the  courts  were  open  for  the  correction  of  the  error, 
and  the  possibility  that  they  might  agree  with  the 
commissioner  could  not  be  laid  hold  of  as  tanta- 
mount to  an  actual  controversy  as  to  the  effect  of 
the  Constitution,  on  the  determination  of  which  the 
result  of  the  present  suit  depended. ' '  ^ 

That  the  power  of  a  State  to  pass  inspection  laws  Absence  of 

^  discnmina- 

is  further  limited  by  the  consideration  that  there  ^i°"- 
must  be  no  discrimination  against  the  products  of 
other  States  and  foreign  coimtries,  is  shown  here- 
after in  discussing  the  effect  of  discriminative  State 
statutes.2 

QUARANTINE  AND   HEALTH  LAWS. 

In  the  Passenaer  Cases  ^  the  court  adjudged  cer-  Taxes  upon 

"        '-'  alien  pas- 

tain  statutes  of  New  York  and  Massachusetts,  im-  sengers. 
posing  taxes  upon  alien  passengers  arriving  in  the 
ports  of  those  States,  to  be  invalid.     There  was  no 

^Per  Chief  Justice  Fuller,  in  Arhuckle  v.  Blackburn,  (1903)   191 
U.  S.  405. 

2  See  infra,  p.  256. 

3  (1849)  7  How.  (U.  S.)  283. 


102 


REGULATION   OF    COMMERCE 


Chapter  opinion  of  the  court,  as  a  court,  and  each  of  the  jus- 
'  tices  wrote  a  separate  opinion  or  concurred  in  that 
of  one  of  the  other  justices,  but  Mr.  Justice  Wayne 
said :  * '  I  think  the  court  means  now  to  decide  .  .  . 
9.  That  the  States  of  this  Union  may,  in  the  exercise 
of  their  police  powers,  pass  quarantine  and  health 
laws,  interdicting  vessels  coming  from  foreign  ports, 
or  ports  within  the  United  States,  from  landing  pas- 
sengers and  goods,  prescribe  the  places  and  time  for 
vessels  to  quarantine,  and  impose  penalties  upon 
persons  for  violating  the  same;  and  that  such  laws, 
though  affecting  commerce  in  its  transit,  are  not 
regulations  of  commerce  prescribing  terms  upon 
which  merchandise  and  persons  shall  be  admitted 
into  the  ports  of  the  United  States,  but  precaution- 
ary regulations  to  prevent  vessels  engaged  in  com- 
merce from  introducing  disease  into  the  ports  to 
which  they  are  bound,  and  that  the  States  may,  in 
the  exercise  of  such  police  power,  without  any  viola- 
tion of  the  power  in  Congress  to  regulate  commerce, 
exact  from  the  owner  or  consignee  of  a  quarantined 
vessel,  and  from  the  passengers  on  board  of  her, 
such  fees  as  will  pay  to  the  State  the  cost  of  their 
detention  and  of  the  purification  of  the  vessel,  cargo, 
and  apparel  of  the  persons  on  board.'' 
congres-  Thc  powcr  of  the  States  to  adopt  such  regula- 

of?tfti'^°"   tions  was  recognized  by  Congress  as  early  as  the 
^'^'^''^       Act  of  May  27,  1796,*  and  Chief  Justice  Marshall, 
in  Gibbons  v.  Ogden,^  referring  to  this  Act  and  the 
Act  of  February  25,  1797,^  said:    ''  But  they  do  not 

♦  1  Stat,  at  L.  474,  c.  31. 

6  (1824)  9  Wheat.  (U.  S.)  1.  See  also  Louisiana  v.  Texas,  (1900) 
176  U.  S.  1;  Morgan's  Steamship  Co.  v.  Louisiana  Board  of  Healtk, 
(1886)   118  U.  S.  455. 

•  1  Stat,  at  L.  619,  c.  12,  carried  forward  into  §§  4792  et  seq.. 
Rev.  Stat.  U.  S.,  3  Fed.  Stat.  Annot.  214. 


EEGULATION   OF    COMMEBCB 


103 


Chapter 
III. 


imply  an  acknowledgment  that  a  State  may  right- 
fully regulate  commerce  with  foreign  nations,  or 
among  the  States;  for  they  do  not  imply  that  such 
laws  are  an  exercise  of  that  power,  or  enacted  with 
a  view  to  it.  On  the  contrary,  they  are  treated  as 
quarantine  and  health  laws,  are  so  denominated  in 
the  Acts  of  Congress,  and  are  considered  as  flowing 
from  the  acknowledged  power  of  a  State  to  provide 
for  the  health  of  its  citizens.  But,  as  it  was  ap- 
parent that  some  of  the  provisions  made  for  this 
purpose,  and  in  virtue  of  this  power,  might  inter- 
fere with  and  be  affected  by  the  laws  of  the  United 
States,  made  for  the  regulation  of  commerce,  Con- 
gress, in  that  spirit  of  harmony  and  conciliation, 
which  ought  always  to  characterize  the  conduct  of 
governments  standing  in  the  relation  which  that  of 
the  Union  and  those  of  the  States  bear  to  each  other^ 
has  directed  its  officers  to  aid  in  the  execution  of 
these  laws;  and  has,  in  some  measure,  adapted  its 
own  legislation  to  this  object,  by  making  provisions 
in  aid  of  those  of  the  States.  But  in  making  these 
provisions,  the  opinion  is  unequivocally  manifested, 
that  Congress  may  control  the  State  laws,  so  far  as 
it  may  be  necessary  to  control  them,  for  the  regula- 
tion of  commerce." 

In  exercising  this  power,  however,  care  should  i^°]J55y. 
always  be  taken  that  the  means  employed  to  that  Sah?^^ 
end  do  not  go  beyond  the  necessities  of  the  case  or 
unreasonably  burden  interstate  commerce.^    A  State 
may  exclude  healthy  persons  from  an  infected  local- 


TReid  V.  Colorado,  (1902)  187  U.  S.  137. 

As  to  disinfecting  imported  rags,  see  Train  r.  Boston  Disinfecting 
Co.,  (1887)  144  Mass.  523;  Bartlett  v.  Lockwood,  (1896)  160  U.  S. 
357. 


304  BEGULATION   OF    COMMEKCE 

Cl^pter  ity,8  and  may  quarantine  against  diseased  animals. 
'  A  statute  of  Colorado  declared,  in  effect,  that  live 
stock,  between  the  dates  and  from  the  territory 
specified  in  the  Act,  are  ordinarily  in  such  condi- 
tion that  their  presence  in  the  State  may  be  danger- 
ous to  its  domestic  animals,  and  required  that  before 
being  sent  into  the  State  they  should  either  be  kept 
at  some  place  north  of  the  36th  parallel  of  latitude 
for  ninety  days  prior  to  their  importation  into  the 
State  or  that  the  owner  should  obtain  from  the  State 
officers  a  bill  of  health.  In  Reid  v.  Colorado  ^  the 
court  said  that,  without  any  evidence  bearing  upon 
the  reasonableness  or  unreasonableness  of  the  par- 
ticular methods  adopted  by  the  State  to  protect  its 
domestic  animals,  it  could  not  be  said  that  the  stat- 
ute unduly  burdened  the  exercise  of  the  privilege  of 
engaging  in  interstate  commerce,  and  held  that  the 
statute  did  not  cover  the  same  ground  as,  and  there- 
fore was  not  inconsistent  with,  the  Act  of  Congress 
known  as  the  Animal  Industry  Act.^ 
aJSfs  Protection  may  not  only  be  provided  against 

diSSS?^°  diseased  animals,  but  against  animals  which  have 
been  exposed  to  disease.^  The  adoption  of  rules  of 
civil  liability  for  damages  that  may  accrue  from 
having  in  possession  certain  cattle  which  have  not 
been  wintered  North,  and  allowing  such  cattle  to  run 
at  large,^  and  from  transporting  cattle  liable  to  im- 
part and  capable  of  communicating  Texas,  splenic, 

8  C5ompagnie  Francaise,  etc.,  v.  Louisiana  State  Board  of  Health, 
(1902)   186  U.  S.  380. 

»  (1902)   187  U.  S.  137. 

lAct  of  May  29,  1884,  c.  60;  1  Fed.  Stat.  Annot.  451.  See  also 
Hannibal,  etc.,  R.  Co.  v.  Husen,  (1877)  95  U.  S.  465. 

2  Smith  V.  St.  Louis,  etc.,  R.  Co.,  (1901)  181  U.  S.  248;  Raa- 
mufisen  v.  Idaho,   (1901)  181  U.  S.  198. 

sKimmish  v.  Ball,  (1889)  129  U.  S.  217. 


REGULATION   OF   COMMERCE  105 


or  Spanish  fever  to  native  cattle,*  does  not  conflict    Chapter 
with  the  power  of  Congress  to  regulate  commerce.  ' 

But  a  statute  prohibiting  the  transportation  of  cer- 
tain cattle  at  a  stated  season  of  the  year  without 
regard  to  whether  they  are  infected  or  not  is  a  plain  J^^'^rd'to 
interference  with  interstate  commerce.  A  Missouri  ^clfr'l  °' 
statute  prohibited  the  driving  or  otherwise  convey-  ^^^*^*^***- 
ing  into  or  remaining  in  any  county  of  the  State,  of 
any  Texas,  Mexican,  or  Indian  cattle  between  the 
first  day  of  March  and  the  first  day  of  November  in 
each  year.  In  Hannibal,  etc.,  R.  Co.  v.  Husen  ^  it 
was  held  that  the  statute  was  neither  a  quarantine 
nor  an  inspection  law,  and  the  court  said:  **  The 
police  power  of  a  State  cannot  obstruct  foreign  com- 
merce or  interstate  commerce  beyond  the  necessity 
for  its  exercise;  and  under  color  of  it  objects  not 
within  its  scope  cannot  be  secured  at  the  expense  of 
the  protection  afforded  by  the  Federal  Constitution. 
And  as  its  range  sometimes  comes  very  near  to  the 
field  committed  by  the  Constitution  to  Congress,  it 
is  the  duty  of  the  courts  to  guard  vigilantly  against 
any  needless  intrusion." 


INSPECTION    AND    QUARANTINE    CHARGES   AND   FEES. 

In  enacting  inspection  and  quarantine  laws,  the  ^J^'^^jf^^J^^' 
States   may   authorize   the   exaction   of  fees    and  j^^|j 
charges  no  more  than  sufficient  to  defray  the  costs 
and  expenses  incurred.^     A  statute  of  Virginia,  pro- 
viding for  the  inspection  of  meat  slaughtered  over 

♦  Missouri,  etc.,  R.  Co.  v.  Haber,  (1898)  169  U.  S.  C13. 

B  (1877)  95  U.  S.  465. 

«Patapsco  Guano  Co.  v.  North  Carolina  Board  of  Agriculture, 
(1898)  171  U.  S.  345;  Morgan's  Steamship  Co.  v.  Louisiana  Board 
of  Health,  (1886)  118  U.  S.  455;  Passenger  Cases,  (1849)  7  How. 
(U.  S.)   283.     See  also  infra,  as  to  duties  of  tonnage,  p.  275. 


106  BEGULATION   OF    COMMERCE 

Cb^ter  one  hundred  miles  from  the  place  at  which  it  was 
'  offered  for  sale,  declared,  *^  and  for  all  fresh  meat 
so  inspected  said  inspector  shall  receive  as  his  com- 
pensation one  cent  per  pound  to  be  paid  by  the  owner 
of  the  meat."  In  Brimmer  v.  Rebman  ^  it  was  held 
that,  even  if  the  other  provisions  could  be  sustained 
as  an  inspection  law,  the  statute  was  in  effect  a 
prohibition  upon  the  sale  in  Virginia  of  meats 
entirely  wholesome,  if  from  animals  slaughtered  one 
hundred  miles  or  over  from  the  place  of  sale,  because 
the  owner,  being  required  to  pay  the  heavy  charge 
of  one  cent  per  pound  to  the  inspector,  as  his  com- 
pensation, could  not  compete  upon  equal  terms,  in 
the  markets  of  that  Commonwealth,  with  those  in 
the  same  business  whose  meats  of  like  kind,  from 
animals  slaughtered  within  less  than  one  hundred 
miles  from  the  place  of  sale,  were  not  subjected  to 
inspection. 
Power  of  While  the  courts  may  declare  inspection  fees  ex- 

congressto  ccsslvc,  aud  thcrcfore  invalid  so  far  as  the  inspec- 

declare  ^  ^ 

excessive,  ^iou  is  of  articlcs  entering  into  the  State  from  other 
States,  a  different  rule  seems  to  obtain  with  respect 
to  articles  imported  from  foreign  countries,  and 
this  because  the  clause  of  Article  I,  section  10,  pro- 
hibiting the  States  from  laying  any  imposts  or  duties 
on  imports  or  exports,  **  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws,'* 
also  provides  that  '*  all  such  laws  shall  be  subject 
to  the  revision  and  control  of  Congress. ' '  In  Turner 
V.  Maryland y^  Mr.  Justice  Blatchford  said:  **As  is 
suggested  in  Neilson  v.  Garza,  (1876)  2  Woods 
(U.  S.)  287,  by  Mr.  Justice  Bradley,  it  may  be  doubt- 

7  (1891)  138  U.  S.  78. 

8  (1882)  107  U.  S.  38. 


REGULATION  OF   COMMERCE  107 

f ul  whether  it  is  not  exclusively  the  province  of  Con-    Chapter 
gress,  and  not  at  all  that  of  a  court,  to  decide  ' 

whether  a  charge  or  duty,  under  an  inspection  law, 
is  or  is  not  excessive."  • 

» See  also  Patapsoo  Guano  Oo.  v.  North  Carolina  Board  of 
Agriculture,  (1898)  171  U.  S.  345;  State  v.  Bixman,  (1901)  162 
Mo.  1. 


PART  n. 

'SUBJECTS  OF  REGULATION. 


A 


CHAPTER  IV. 

MANUFACTUKE  AND  PKODIJCTION. 

S  the  power  delegated  to  Congress  is  limited    Chapter 
to   **  commerce   with   foreign   nations,    and 


IV. 


among  the  several  States,  and  with  the  Indian  Manufac- 
tribes,  * '  there  is  an  internal  commerce  which  is  sub-  production 

'  as  matters 

ject  to  the  exclusive  control  of  the  States.  The  conctST^**^ 
principle  that  manufacture  and  production  are  not 
commerce  was  clearly  stated  by  Mr.  Justice  Lamar 
in  Kidd  v.  Pearson}  He  said:  **  No  distinction  is 
more  popular  to  the  common  mind,  or  more  clearly 
expressed  in  economic  and  political  literature,  than 
that  between  manufactures  and  commerce.  Manu- 
facture is  transformation  —  the  fashioning  of  raw 
materials  into  a  change  of  form  for  use.  The  func- 
tions of  commerce  are  different.  The  buying  and 
selling  and  the  transportation  incidental  thereto 
constitute  commerce;  and  the  regulation  of  com- 
merce in  the  constitutional  sense  embraces  the  regu- 
lation at  least  of  such  transportation.  * '  And  it  was 
said  by  Chief  Justice  Fuller,  in  U.  8.  v.  E.  C.  Knight 
Co.^  that  '*  Commerce  succeeds  to  manufacture, 
and  is  not  a  part  of  it.*' 

In  the  Kidd  v.  Pearson  case,  supra,  it  was  held  Prohibitini: 

manufac- 

that  a  statute  of  Iowa  which,  as  construed  by  the  turefor 

'  "  export. 

State  Supreme  Court,  provided  that  intoxicating 

1  (1888)   128  U.  S.  1. 

Packing  houses  are  not  engaged  in  interstate  commerce.    U.  S.  v, 
Boyer,  (1898)  85  Fed.  Rep.  425. 

2  (1895)  156  U.  S.  1. 


112  BEGULATION   OF   COMMERCE 

Chapter  Hquors  might  be  manufactured  and  sold  within 
'  the  State  for  chemical,  medicinal,  culinary,  and 
sacramental  purposes,  but  for  no  other  —  not  even 
for  the  purpose  of  transportation  beyond  the  limits 
of  the  State  —  was  within  the  police  power  of  the 
State,  and  that  one  who  manufactured  liquors  ex- 
clusively for  exportation  and  sale  outside  the  State 
was  within  the  prohibition  of  the  statute.  The  court 
distinctly  recognized  and  applied  the  rule  that  the 
fact  that  an  article  is  manufactured  for  export  to 
another  State  does  not  of  itself  make  it  an  article 
of  interstate  commerce  within  the  meaning  of  the 
Constitution.^ 
wrplStion  ^^^®  question  of  the  power  of  a  State  to  control 
fn  ma^nu-  corporatious  engaged  in  manufacture  was  raised  in 
comply  ^°  a  peculiar  way  under  a  statute  of  Wisconsin  requir- 
uw.  ^  ing  that  a  company  incorporated  elsewhere  file  a 
copy  of  its  charter  with  the  Secretary  of  State, 
and  pay  a  small  fee  as  a  condition  of  doing  busi- 
ness there.  A  foreign  corporation  entered  into  a 
contract  within  the  State  for  the  erection  of  a 
factory  to  be  operated  under  the  supervision  of  the 
officers  of  the  foreign  corporation,  and  the  fact  that 
the  product  was  intended  to  be  used  outside  the 
State,  and  that,  indeed,  very  little  could  be  used 
within  the  State,  was  held  not  to  exempt  the 
foreign  corporation  from  compliance  with  the  re- 
quirements of  the  State  statutes.*  An  Ohio  statute 
allowing  the  manufacture  and  sale  of  oleomargarine 
when  free  from  any  coloring  matter  or  other  ingre- 
dient causing  it  to  look  like  or  to  appear  to  be  butter 
as  defined  in  the  statute,  and  expressly  forbidding 
the  manufacture  or  sale  within  the  State  of  any 

»  See  infra,  p.  152,  and  Mugler  v.  Kansas,  (1887)  123  U.  S.  623. 
*  Diamond  Glue  Co.  v.  U.  S.  Glue  Co.,  (1903)   187  U.  S.  611. 


EEGULATION  OF   COMMERCE  113 

oleomargarine  which  contained  any  methyl  orange,    Chapter 
butter  yellow,  annotto,  aniline  dye,  or  any  other  ' 

coloring  matter,  was  held  not  to  violate  this  clause 
when  all  the  acts  of  the  corporation  which  were 
complained  of  related  to  oleomargarine  manufac- 
tured by  it  in  the  State  of  Ohio,  in  violation  of  the 
laws  of  that  State,  and  therefore  operated  on  the 
corporation  within  the  State  and  affected  the  prod- 
uct manufactured  by  it  before  it  had  become  a  sub- 
ject of  interstate  commerce.^ 

In  Addyston  Pipe,  etc.,  Co.  v.  U.  S.^  the  defend-  combina- 

.  tionof 

ants  were  engaged  m  the  manufacture,  sale,  and  ™^2^/^J- 
transportation  of  iron  pipe  at  their  respective  places  f?omS)m- 
of  business  in  the  States  of  their  residence,  and  had  ?aies'of** 
entered  into  a  combination  among  themselves  by  ^^°  "^  *** 
which  they  agreed  that  there  should  be  no  competi- 
tion between  them  in  any  of  the  States  or  Territories 
mentioned  in  the  agreement  in  regard  to  the  manu- 
facture and  sale  of  cast-iron  pipe.     Thus  provision 
was  made,  not  alone  for  the  manufacture  but  for 
the  sale  of  the  manufactured  product,  and  the  con- 
tract directly  affected,  not  as  a  mere  incident  of 
manufacture,  the  sale  of  the  articles  over  the  terri- 
tory embraced  in  the  contract.      The  contract  was 
held  to  be  within  the  terms  and  purpose  of  the 
Sherman  Anti-Trust  Act.''^ 

It  was  urged  that  this  case  was  within  the  prin-  combina- 
ciple  of  the  decision  in  the  E.  C.  Knight  Go.  case,  manufac- 

^  '^  '     turers  to 

supra.     In  that  case  it  was  held  that  although  the  SanX"" 
American  Sugar  Refining  Company,  by  means  of  a  ^'"'^' 
combination,  had  obtained  a  practical  monopoly  of 
the  business  of  manufacturing  sugar,  yet  the  Act  of 

5  Capital  City  Dairy  Co.  v.  Ohio,  (1902)  183  U.  S.  238. 
«  (1899)   175  U.  S.  211. 

1  Act  of  Congress  of  July  2,  1890,  c.  64,  7  Fed.  Stat.  Axmot.  336. 
8 


114 


REGULATION   OF   COMMERCE 


Chai 


uvpter 


Distinction 

^between 

imanufac- 

tareand 

domestic 

sales  and 

interstate 


re- 
stated in 
■orthern 
Securities 


Congress  did  not  touch  the  case,  because  the  com- 
bination related  to  manufacture  only  and  not  to 
commerce  among  the  States  or  with  foreign  nations. 
The  direct  purpose  was  the  control  of  the  manu- 
facture of  sugar ;  there  was  no  combination  or  agree- 
ment, in  terms,  regarding  the  future  disposition  of 
the  manufactured  article,  nothing  looking  to  a  trans- 
action in  the  nature  of  interstate  commerce.  On 
the  other  hand,  in  the  Addyston  Pipe,  etc,  Co.  case, 
supra,  while  no  particular  contract  regarding  the 
furnishing  of  pipe  and  the  price  for  which  it  should 
be  furnished  was  in  the  contemplation  of  the  parties 
to  the  combination  at  the  time  of  its  formation,  yet 
it  was  their  intention  to  increase,  directly  and  by 
means  of  such  combination,  the  price  for  which  all 
contracts  for  delivery  within  the  territory  embraced 
by  the  contract  should  be  made. 

As  giving  point  to  the  distinction  between  the 
domestic  business  of  the  defendants,  so  far  as  it 
consisted  of  the  manufacture  and  sale  wholly  within 
their  respective  States,  and  that  part  of  their  busi- 
ness which  related  to  the  delivery  of  pipe  after 
manufacture  from  their  respective  States  to  the 
other  States  and  Territories  covered  by  their  con- 
tract, the  court  modified  the  judgment  of  the  Court 
of  Appeals  so  far  as  it  included  in  its  scope  the 
enjoining  of  the  defendants  from  combining  in  re- 
gard to  contracts  for  selling  pipe  in  their  own  State, 
and  limited  it  to  that  portion  of  the  combination  or 
agreement  which  had  relation  to  interstate  sales. 

And  as  adding  further  emphasis  to  this  distinc- 
tion, Mr.  Justice  Harlan,  after  reviewing,  in  the 
ease  of  Northern  Securities  Co.  v.  U.  8.,^  the  cases 
which  had  been  decided  under  the   statute,   sum- 


8  (1904)   193  U.  S.  197. 


KEGULATION   OF    COMMERCE  115 

marized  the  propositions  deducible  therefrom,  and    Chapter 
having  special  reference  to  the  question  decided  in  ' 

the  Addyston  Pipe,  etc.,  Co.  case,  supra,  said: 
**  Although  the  Act  of  Congress  known  as  the 
Anti-Trust  Act  has  no  reference  to  the  mere  manu- 
facture or  production  of  articles  or  commodities 
within  the  limits  of  the  several  States,  it  does  em- 
brace and  declare  to  be  illegal  every  contract,  com- 
bination, or  conspiracy,  in  whatever  form,  of  what- 
ever nature,  and  whoever  may  be  parties  to  it,  which 
directly  or  necessarily  operates  in  restraint  of  trade 
or  commerce  among  the  several  States  or  with 
foreign  nations.  .  .  .  Combinations  even  among 
private  manufacturers  or  dealers  whereby  interstate 
or  international  commerce  is  restrained  are  equally 
embraced  by  the  Act. ' ' 

The  power  of  Congress  in  some  measure  indi-  Power  of 

^  ^       ,  Congress  t« 

rectly  to  regulate  production  and  manufacture  must  p^^J[^^^ 
be  conceded.  By  denying  the  facilities  of  interstate  ^*"^"^^^* 
transportation  in  the  case  of  commodities  which 
have  not  been  manufactured  under  federal  super- 
vision, this  object  may  be  attained.  To  insure  the 
interstate  and  foreign  trade  in  pure  and  unadulter- 
ated foods,  and  to  prevent  frauds  upon  purchasers 
of  goods  which  are  upon  the  interstate  and  foreign 
market.  Congress  would  seem  to  have  ample  power. 
But  there  must  be  some  limit,  some  line  of  demarca- 
tion between  the  power  of  Congress  and  of  the 
States,  in  controlling  the  processes  of  manufacture, 
beyond  which  Congress  cannot  step.  That  there 
must  be  a  limit  to  the  power  of  Congress  in  this 
regard  is  evident  both  from  the  nature  of  the  sub- 
ject and  from  the  judicial  recognition  and  insistence 
that  manufacture  is  not  commerce,  or,  at  any  rate, 
that  in  and  of  itself  it  is  a  matter  of  domestic 
concern. 


116  BEGULATION   OF    COMMERCE 

Chapter  The  remark  of  Chief  Justice  Fuller,  that  ''  com- 
'  meree  succeeds  to  manufacture,"  in  the  E.  C. 
Knight  Co.  case,  supra,  is  very  suggestive  in  this 
connection.^  It  will  have  been  noticed  that  in  the 
Addyston  Pipe,  etc.,  Co.  case,  supra,  while  the  con- 
tract or  combination  was  entered  into  with  respect  to 
articles  to  be  thereafter  manufactured,  the  contract 
nevertheless  had  reference  to  contracts  of  sale  and 
delivery  in  other  States  and  Territories  than  those 
Extent  of     iu  wMch  thc  rcspcctive  manufacturers  resided,  and 

power  of  ,  ^ 

congrress     as  it  tcudcd  to  restram  interstate  trade  in  those 

suggested. 

articles,  in  violation  of  the  statute,  the  conspirators 
were  enjoined  from  carrying  out  that  part  of  their 
contract,  but  neither  their  right  to  manufacture  nor 
their  purely  domestic  trade  could  be  affected  by  a 
federal  statute.  And  in  the  supposed  cases  of  indi- 
rect interference,  by  denying  the  privileges  of  inter- 
state transportation  in  the  interest  of  the  consumer, 
the  exercise  by  Congress  of  such  a  right  would  seem 
to  be  referable  to  a  power  in  the  nature  of  an  ultra- 
constitutional  or  federal  police  regulation.^  To  the 
extent  that  manufacturers,  in  so  far  as  their  busi- 
ness is  concerned  in  finding  an  interstate  or  foreign 
market  for  their  products,  may  be  subject  to  the 
rules  prescribed  by  Congress  by  which  that  com- 
merce shall  be  governed,  as  by  the  rule  of  free  com- 
petition, and  to  such  regulations  as  may  be  adopted 
to  insure  the  quality  of  the  articles  transported  and 
for  the  prevention  of  fraud  and  imposition  —  to 

9  As  is  also  that  of  Chief  Justice  Waite,  that  "  commerce  has 
nothing  to  do  with  land  while  producing,  but  only  with  the  product 
after  it  has  become  the  subject  of  trade,"  made  in  McCready 
V.  Virginia,  (1876)  94  U.  S.  391,  wherein  the  right  of  a  State  to 
grant  the  exclusive  use  of  the  land  under  its  waters  to  its  own  citi- 
zens for  the  propagation  of  oysters  was  affirmed. 

1  See  supra,  p.  51. 


REGULATION   OF    COMMERCE  117 


limited. 


this  limit,  the  power  of  Congress  may  probably  be    Chapter 
exerted.  ' 

But  if,  mider  the  guise  of  its  power  to  regulate  coiT^esi 
interstate  and  foreign  transportation,  Congress  were  p°oceUe°s 
to  attempt  to  control  the  processes  of  production  facTur"e 
and  manufacture,  with  the  avowed  or  ostensible  pur- 
pose of  regulating  matters  which  are  of  purely 
domestic  or  local  concern,  and  with  no  federal  policy 
to  be  promoted,  it  must  be  that  the  line,  faint  though 
it  be,  which  marks  the  boundary  of  federal  and  State 
power,  would  seemingly  be  overstepped.  For  in- 
stance, labor  laws,  strictly  so  called,  are  assuredly 
matters  of  State  regulation.  It  may  be,  in  order 
to  secure  the  purity  or  quality  of  articles  to  be  trans- 
ported from  one  State  to  another  and  to  foreign 
countries,  that  Congress  can  prohibit  the  trans- 
portation of  articles  which  have  not  been  produced 
under  conditions  guaranteeing  their  purity  and  fit- 
ness for  consumption,  and  can  probably  stipulate  for 
the  freedom  from  certain  diseases  of  the  persons 
employed,  as  well  as  for  the  sanitary  condition  of  the 
premises.  Here  there  would  be  an  element  of  the 
federal  policy  —  a  national  guaranty  of  the  quality 
of  the  article.  But  federal  laws  regulating  the 
hours  of  labor  and  prohibiting  the  employment  of 
children,  and  making  a  conformity  to  those  laws  a 
condition  to  the  interstate  transportation  of  the 
goods  manufactured,  proper  subjects  of  regulation 
though  these  may  be,  can  have  no  relation  to  any- 
thing more  than  matters  of  local  concsrn,  as  it  is 
difficult  to  see  how  such  regulations  can  be  embraced 
by  any  conceivable  rule  of  commerce,  or  how  they 
can  be  considered  such  police  regulations  as  would 
serve  any  distinctively  federal  purpose. 


CHAPTER  V. 

SALE,   PUKCHASE,  AND  EXCHANGE   OF 
COMMODITIES. 

POWEB  OF   CONGRESS  IN  GENERAL. 

Chapter  T^HAT  part  of  interstate  commerce  which  con- 

^'  1       sists  in  the  sale,  purchase,  and  exchange  of 

Interstate  commoditics  for  transportation  from  one  State 

exclusive  to  anothcr  is  national  in  its  character  and  must  be 

power  of 

Congress,  governed  by  a  uniform  system,  and  is  within  the 
exclusive  power  of  Congress  to  control.  So  long 
as  Congress  does  not  pass  any  law  regulating  it,  or 
allowing  the  States  to  do  so,  it  thereby  indicates  its 
will  that  such  commerce  shall  be  free.* 

^ie?^thin        ^^  ^^^  other  hand.  Congress  is  without  power 

power'of      to  legislate  respecting  the  traffic  which  is  intrastate. 

thesutes.  rpj^g  ^^g  clearly  indicated  in  the  case  of  Addyston 
Pipe,  etc.,  Co.  v.  U.  S.,^  referred  to  heretofore,  in 
considering  the  subject  of  manufacture,  in  which 
case  the  court  modified  the  judgment  in  so  far  as  it 
included  in  its  scope  the  enjoining  of  the  defend- 
ants from  combining  in  regard  to  contracts  of  sale 
to  be  performed  within  their  respective  States. 

1  Interstate  commerce  consists  of  intercourse  and  traffic  between 
the  citizens  or  inhabitants  of  diflferent  States,  and  includes  not  only 
the  transportation  of  persons  and  property  and  the  navigation  of 
public  waters  for  that  purpose,  but  also  the  purchase,  sale,  and 
exchange  of  commodities.  Addyston  Pipe,  etc.,  Co.  v.  U.  S.,  (1899) 
175  U.  S.  211,  citing  Gloucester  Ferry  Co.  v.  Pennsylvania,  (1885) 
114  U.  S.  196;  Kidd  v.  Pearson,  (1888)  128  U.  S.  1. 

2  (1899)  175  U.  S.  211. 


REGULATION   OF    COMMERCE  119 

The  Internal  Revenue  Act  of  Congress  of  March    ChM>*er 
2,  1867,^  provided  **  that  no  person  shall  mix  for  ' 

sale  naphtha  and  illuminating  oils,  or  shall  knowingly 
sell  or  keep  for  sale  or  offer  for  sale  such  mixture, 
or  shall  sell  or  offer  for  sale  oil  made  from  petro- 
leum for  illuminating  purposes,  inflammable  at  less 
temperature  or  fire-test  than  110  degrees  Fahren- 
heit; and  any  person  so  doing  shall  be  held  to  be 
guilty  of  a  misdemeanor,  and  on  conviction  thereof 
by  indictment  or  presentment  in  any  court  of  the 
United  States  having  competent  jurisdiction,  shall 
be  punished  by  fine,  etc.,  and  imprisonment. ' '  It  Federal 
was  urged  that  the  provision  was  in  aid  and  sup-  l^^^SS 
port  of  the  internal  revenue  tax  imposed  on  other  eJifpto^ 
illuminating  oils,  analogous  to  provisions  regulat- 
ing the  business  of  distilling  liquors,  and  the  mode 
of  packing  various  manufactured  articles,  but  in 
U.  S.  V.  Dewitt  ^  the  court  said  that  if  the  prohibi- 
tion had  any  relation  to  taxation  at  all,  it  was: 
merely  that  of  increasing  the  production  and  sale 
of  other  oils,  and,  consequently,  the  revenue  derived 
from  them,  by  excluding  from  the  market  the  par- 
ticular kind  described,  and  that  this  consequence 
was  too  remote  and  too  uncertain  to  warrant  the 
court  in  saying  that  the  prohibition  was  an  appro- 
priate and  plainly  adapted  means  for  carrying  inta 
execution  the  power  of  laying  and  collecting  taxes. 
And  Chief  Justice  Chase,  speaking  for  the  court, 
further  said  that  **  as  a  police  regulation,  relating 
exclusively  to  the  internal  trade  of  the  States,  it  can 
only  have  effect  where  the  legislative  authority  of 
Congress  excludes,  territorially,  all  State  legisla- 
tion, as  for  example,  in  the  District  of  Columbia. 

8  14  Stat,  at  L.  484,  c.  169,  §  29. 
*  (1869)  9  Wall.  (U.  S.)  41. 


120  BEGULATION   OF    COMMERCE 

Chapter    Within  State  limits,  it  can  have  no  constitutional 
'       operation." 

POWER   OF   THE   STATES   IN   GENERAL. 

?Sf pro"'  ^  State  has  the  power  to  permit  or  entirely  to 

uw'Sted  forbid  the  purchase  and  sale  of  articles  within  the 
proJSty.  State,  so  long  as  the  legislation  does  not  place  any 
burden  or  prohibition  on  sales  within  the  State  of 
articles  of  commerce  imported  from  foreign  coun- 
tries or  from  other  States  while  those  goods  are 
in  the  original  packages  and  in  the  hands  of  the 
importers  for  sale.^  A  State  law  prohibiting  the 
sale  of  any  commodity  is  not  absolutely  void  when 
it  is  so  general  in  its  terms  as  to  apply  to  importa- 

6  A  state  cannot  prohibit  the  delivery  to  a  purchaser  in  the  State 
of  goods  purchased  by  him  in  another  State.  Sternweis  v.  Stilsing, 
(1890)  52  N,  J.  L.  517. 

A  shipment  of  goods  to  another  State  upon  an  order  by  telegraph 
is  interstate  commerce.  H.  Zuberbier  Co.  v.  Harris,  (Tex.  Civ.  App. 
1896)  35  S.  W.  Rep.  403. 

In  Lang  v.  Lynch,  (1889)  38  Fed.  Rep.  489,  it  was  held  that  a 
New  Hampshire  statute  making  it  a  criminal  offense  for  any  person 
to  solicit  orders  for  spirituous  liquors  in  the  State,  to  be  delivered 
at  a  place  without  the  State,  knowing,  or  having  reasonable  cause  to 
believe,  that  if  delivered  the  same  will  be  transported  into  the  State, 
and  sold  in  violation  of  law,  is  valid. 

Goods  sold  after  arrival  within  the  State  are  not  entitled  to  the 
protection  of  the  commerce  clause.  Duncan  v.  State,  (1898)  105 
Oa.  457;  In  re  Kinyon,  (1904)  9  Idaho  642;  Muskegon  v.  Zeeryp, 
(1903)  134  Mich.  181;  Western  Paper  Bag  Co.  v.  Johnson,  (Tex. 
Civ.  App.  1896)  38  S.  W.  Rep.  364. 

A  State  may  prohibit  peddling  goods  from  door  to  door.  Com.  v. 
Gardner,  (1890)  133  Pa.  St.  284. 

A  transaction  is  not  a  sale  in  original  packages  when  it  is 
executory  and  incomplete  until  the  goods  are  received,  unsealed,  and 
sampled.    Wasserboehr  v.  Boulier,  (1892)  84  Me.  165. 

Prohibiting  the  sale  of  perishable  articles  at  depots  and  landings 
has  been  held  not  to  be  within  the  power  of  the  State.  Spellman  v. 
New  Orleans,  (1891)  45  Fed.  Rep.  3.  But  see  State  v.  Davidson, 
(1898)  50  La.  Ann.  1297. 


REGULATION    OF    COMMERCE  121 

tions  into  the  State  from  without  and  to  permit  the    Chapter 
seizure  of  the  articles  before  they  have  by  sale  or  ' 


other  transmutation  become  a  part  of  the  common 
mass  of  the  property  of  the  State,  but  the  operation 
of  the  law  is  limited  to  property  strictly  within  the 
jurisdiction  of  the  State.® 

This  right  to  sell  goods  in  original  packages  is  ^^^^J^ 
not  only  personal,  but  may  be  exercised  through  an  ^""p^^*^- 
agent  of  the  importer/  Nor  does  the  fact  that  arti- 
cles are  not  shipped  separately  and  directly  to  each 
individual  purchaser,  but  are  sent  to  an  agent  of 
the  vendor  at  their  intended  destination,  who  de- 
livers them  to  the  purchasers,  deprive  the  transac- 
tion of  its  character  as  interstate  commerce.  It  is 
only  that  the  vendor  uses  two  agencies  instead  of 
one  in  the  delivery.^ 

WHAT   CONSTITUTES   AN   ORIGINAL    PACKAGE. 

From  the  apparent  necessity  for  determining  sourceof 
the  point  of  time  when  goods  shipped  into  a  State 
from  other  States  or  from  foreign  countries  cease 
to  be  under  the  protection  of  the  Federal  Constitu- 
tion and  become  subject  to  the  operation  of  the  laws 
of  the  State  to  which  they  are  shipped,  the  original- 
package  doctrine  has  been  developed.  It  is  Chief 
Justice  Marshall  to  whom  we  are  under  obligation 
for  the  adoption  of  a  convenient  and  expressive 
term.  In  the  case  of  Brown  v.  Maryland,  to  the 
particular  decision  of  which  we  refer  elsewhere,^  the 
chief  justice  said  that  **  while  remaining  the  prop- 

6Leisy  V.  Hardin,  (1890)  135  U.  S.  100. 

7  Sehollenberger  v.  Pennsylvania,    (1898)    171  U.  S.  1.     See  also 
Wagner  v.  Meakin,  (1899)  92  Fed.  Rep.  76. 

8  Caldwell  v.  North  Carolina,   (1903)    187  U.  S.  622. 
»  (1827)  12  Wheat.  (U.  S.)  419.    See  infra,  p.  309. 


122 


REGULATION   OF    COMMERCE 


Chapter 
V. 


General 

considera* 

tions. 


Packages 
of  dry 
goods. 


erty  of  the  importer,  in  Ms  warehouse,  in  the  origi- 
nal form  or  package  in  which  it  was  imported, '^  an 
article  imported  into  a  State  is  within  the  protection 
of  the  Constitution  from  the  operation  of  State  laws. 
Early  as  was  the  point  decided  and  important  as  the 
question  is,  we  have  only  a  few  Supreme  Court 
cases  to  aid  in  determining  what  constitutes  an 
original  package.  The  term  is  not  defined  by  any 
statute,  and,  from  the  nature  of  the  subject,  it  may 
be  impossible  to  define  the  size  or  shape  of  an 
original  package.  The  size  in  which  the  importa- 
tion is  actually  made  does  not  govern,  but  the  ques- 
tion is  mainly  determined  by  the  size  of  the  package 
in  which  bona  fide  transactions  are  carried  on  be- 
tween manufacturers  and  wholesale  dealers  residing 
in  different  States.* 

The  clause  of  Article  I,  section  10,  of  the  Con- 
stitution, provides  that  ^*  no  State  shall,  without 
the  consent  of  Congress,  lay  any  imposts  or  duties 
on  imports  or  exports,  except  what  may  be  abso- 
lutely necessary  for  executing  its  inspection  laws.'' 
In  May  v.  New  Orleans  ^  was  involved  the  validity 
of  certain  tax  assessments  made  by  the  city  of  New 
Orleans  upon  merchandise  and  stock  in  trade,  which 
consisted  of  dry  goods  imported  from  foreign  coun- 
tries, upon  which  duties  had  been  levied  by  and  paid 
to  the  government.  The  goods  were  put  up  for 
sale  in  packages,  a  large  number  of  such  packages 
being  enclosed  in  wooden  cases  or  boxes  for  the  pur- 
poses of  importation,  and  it  was  held  that  the  origi- 
nal package  was  the  box  or  case  in  which  the  goods 


1  Where  flour,  bran,  and  meal  are  shipped  in  sacks  in  carload 
lots,  the  goods  in  the  sacks  are  the  original  packages.  Lasater  v. 
Purcell  Mill,  etc.,  Co.,  (1899)  22  Tex.  Civ.  App.  33. 

2  (1900)  178  U.  S.  496. 


O'   THE 

UNIVERSITY 

OF 
REGULATION   OF   COMMERCE  123 

were  shipped  and  not  the  packages  contained  in  the    Chapter 
box  or  case.  

In  Leisy  v.  Hardin  ^  quarter  barrels,  half  barrels,  ^fj-^^u^^^. 
and  cases  of  beer  were  recognized  as  original  pack- 
ages, and  in  a  number  of  State  and  inferior  federal 
court  cases  the  question  whether  the  bottles  in  which 
liquors  are  shipped  are  original  packages  has  been 
presented.  In  those  cases  a  distinction  is  recog- 
nized between  a  shipment  of  liquor  in  bottles  packed 
in  boxes,  and  a  shipment  of  the  bottles  separately, 
generally  holding  that  in  the  one  case  the  box,  and 
in  the  other  each  bottle,  constitutes  the  original 
package.* 

Whether  the  size  of  a  package  is  material,  was  If'^^^fj^ 
the  question  clearly  presented  and  decided  in  the  ''«"«•• 
case  of  Austin  v.  Tennessee,^  and  it  was  held  that  a 
package  of  three  inches  in  length  and  one  and  a  half 
inches  in  width,  containing  ten  cigarettes,  is  not  an 
original  package.  Mr.  Justice  Brown,  delivering 
the  opinion  of  the  court,  said  that  *^  no  doubt  the 
fact  that  cigarettes  are  actually  imported  in  a  cer- 
tain package  is  strong  evidence  that  they  are  original 
packages  within  the  meaning  of  the  law;  but  this 
presumption  attaches  only  when  the  importation  is 
made  in  the  usual  manner  prevalent  among  honest 
dealers,  and  in  a  bona  fide  package  of  a  particular 

3  (1890)   135  U.  S.  100. 

4  See  In  re  Harmon,  (1890)  43  Fed.  Rep.  372;  In  re  Beine,  (1890) 
42  Fed.  Rep.  545;  Tinker  v.  State,  (1891)  96  Ala.  115;  Harrison  v. 
State,  (1890)  91  Ala.  62;  Keith  V.  State,  (1890)  91  Ala.  2;  Smith 
V.  State,  (1891)  54  Ark.  248;  McGregor  v.  Cone,  (1898)  104  Iowa 
465;  State  v.  Miller,  (1892)  86  Iowa  638;  State  v.  Coonan,  (1891) 
82  Iowa  400;  State  v.  Zimmerman,  (1889)  78  Iowa  614;  State  V. 
Bowman,  (1889)  78  Iowa  519;  Grousendorf  v.  Howat,  (1889)  77 
Iowa  187;  Collins  v.  Hills,  (1889)  77  Iowa  181;  Haley  v.  State, 
(1894)42  Neb.  556;  State  V.  Chapman,  (1890)  1  S.  Dak.  414. 

8  (1900)  179  U.  S.  343. 


124  BEGULATION   OF   COMMERCE 

Ch^ter  size."  The  question  was  again  submitted  and  the 
'  same  result  reached  in  Cook  v.  Marshall  County.^ 
The  only  difference  between  the  two  cases  was  that 
in  the  Austin  v.  Tennessee  case,  supra,  a  basket, 
furnished  by  the  express  company,  was  used  to  hold 
the  packages,  and  in  the  Cook  v.  Marshall  County 
case  no  basket  was  used,  the  packages  being  shipped 
absolutely  loose,  not  boxed,  baled,  wrapped,  or 
covered,  nor  in  any  way  attached  together.  On  the 
question  of  the  motive  of  the  shipper  in  selecting 
such  an  unusual  method  of  shipping  the  cigarettes, 
the  court,  again  speaking  through  Mr.  Justice 
Brown,  said :  * '  Where  the  lawfulness  of  the  method 
used  for  transporting  goods  from  one  State  to 
another  is  questioned,  it  may  be  shown  that  the  in- 
tent of  the  party  concerned  was  not  to  select  the 
usual  and  ordinary  method  of  transportation,  but 
an  unusual  and  more  expensive  one,  for  the  express 
purpose  of  evading  or  defying  the  police  laws  of 
the  State.  If  the  natural  result  of  such  method  be 
to  render  inoperative  laws  intended  for  the  pro- 
tection of  the  people,  it  is  pertinent  to  inquire 
whether  the  act  was  not  done  for  that  purpose,  and 
to  hold  that  the  interstate  commerce  clause  of  the 
Constitution  is  invoked  as  a  cover  for  fraudulent 
dealing,  and  is  no  defense  to  a  prosecution  under 
the  State  law." 

Packages  Teu-pouud  packagcs  of  oleomargarine  were  held 

to  be  original  packages  in  Schollenherger  v.  Penn- 
sylvania? In  this  case,  which  was  an  indictment 
and  conviction  for  a  violation  of  a  Pennsylvania 
statute  prohibiting  the  sale  of  oleomargarine,  a 
special  verdict  had  been  found,  in  which  it  was 

«  (1905)   196  U.  S.  261. 
7  (1898)   171  U.  S.  1. 


ganne. 


EEGULATION   OF   COMMERCE  125 

stated  that  the  package  ''  was  of  such  form,  size,    Chapter 
and  weight  as  is  used  by  producers  or  shippers  for  ' 

the  purpose  of  securing  both  convenience  in  han- 
dling and  security  in  transportation  of  merchandise 
between  dealers  in  the  ordinary  course  of  actual 
commerce,  and  the  said  form,  size,  and  weight  were 
adopted  in  good  faith  and  not  for  the  purpose  of 
evading  the  laws  of  the  Commonwealth  of  Pennsyl- 
vania/* This  finding  seems  to  have  had  much 
weight  with  the  court,  and  is  particularly  referred 
to  in  the  Austin  v.  Tennessee  cigarette  case,  supra, 
in  distinguishing  the  two  cases,  on  the  question  of 
the  motive  of  the  shipper. 

The  principle  that  the  size  of  the  package  in 
which  goods  may  be  imported  into  a  State  is  ma- 
terial was  not  established  without  strong  dissent. 
In  the  Austin  v.  Tennessee  case,  supra,  Mr.  Justice 
Brewer  wrote  a  vigorous  dissenting  opinion,  attack- 
ing the  holding  of  the  court  that  a  package  of  ten 
cigarettes  is  not  an  original  package.  Three  other 
justices.  Chief  Justice  Fuller,  and  Justices  Shiras 
and  Peckham,  concurred  in  the  dissent.  In  his  dis-  judicial 
senting  opinion,  the  learned  justice  pointed  out,  as  g^°^^« 
a  result  of  the  decision  of  the  court,  that  the  deter- 
mination of  a  great  constitutional  question  turns  on 
the  shifting  opinions  of  individual  judges  as  to  the 
peculiar  facts  of  a  particular  case,  and  that  no  one 
could  tell  from  this  annunciation  where  the  dividing 
line  is  between  the  power  of  the  States  and  the 
power  of  the  nation.  Comparing  the  results 
reached  in  the  two  leading  cases,  he  said:  **  Ap- 
parently, the  dividing  line  as  to  the  size  of  pack- 
ages must  be  somewhere  between  that  of  a  ten- 
pound  package  of  oleomargarine  and  that  of  a  pack- 
age of  ten  cigarettes;  but  where?    Must  diamonds, 


126  EEGULATION   OF    COMMERCE 

Chapter  in  order  to  be  within  the  protecting  power  of  the 
'  nation,  be  carried  from  State  to  State  in  ten-pound 
packages?  If  it  be  said  that  diamonds  are  not  a 
subject  of  police  regulation,  and  that  a  different 
rule  obtains  in  reference  to  them  than  to  matters 
of  police  regulation  (as  might  be  implied  from  the 
scope  of  the  opinion),  I  can  only  say  that  the  con- 
clusion seems  to  me  strange.  Concretely,  it  amounts 
to  this:  The  police  power  of  the  State,  the  power 
exercised  to  preserve  the  health  and  morals  of  its 
citizens,  may  prevent  the  importation  and  sale  of 
a  pint  of  whiskey,  but  cannot  prevent  the  importa- 
tion and  sale  of  a  barrel;  or,  in  other  words,  the 
greater  the  wrong  which  is  supposed  to  be  done  to 
the  morals  and  health  of  the  community,  the  less  the 
power  of  the  State  to  prevent  it.  That  may  be  con- 
stitutional law,  but  to  my  mind  it  lacks  the  saving 
element  of  common  sense.  I  see  no  logical  half-way 
place  between  a  recognition  of  the  power  of  the 
nation  to  regulate  commerce  between  the  States  in 
all  things  which  are  the  subjects  of  commerce  (in 
whatever  form  or  manner  they  may  be  imported) 
and  a  concession  of  the  power  of  the  State  to  pre- 
vent absolutely  the  importation  and  sale  of  articles 
deemed  by  it  prejudicial  to  the  health  or  morals  of 
its  citizens. '  * 
Materiality  It  would  scem,  at  any  rate,  that  the  size  of  the 
?oim?ief  original  package  has  as  yet  been  held  to  be  mate- 
Mi2i"of  ^i^l  o^ly  ^s  ^0  articles  which  may  be  said  to  come 
within  the  police  power.  While  the  cases  have  left 
it  uncertain  as  to  the  size  of  the  package  which  will 
hold  the  articles  imported  from  the  operation  of  a 
State  law  while  in  the  original  package,  and  per- 
haps the  question  is  one  impossible  of  exact  defini- 
tion, the  few  federal  Supreme  Court  cases  which 


ice 
ipower. 


REGULATION   OF    COMMERCE  127 

liave  required  that  court  to  pass  upon  the  point,    Ch^ter 
contain  suggestions  from  which  a  few  rules  may  be  ' 

framed : 

1.  The  package  must  be  capable  of  being  com-  somesug- 
mercially  transported  from  one  State  to  an-  '■"^«^ 
other  as  a  separate  importation. 

2.  The  right  of  the  importer  to  sell  does  not 
depend  upon  whether  the  original  package  is 
suitable  for  wholesale  or  retail  trade. 

3.  The  fact  that  Congress,  for  the  purpose  of 
taxation,  has  prescribed  a  certain  size  of 
package  to  be  separately  stamped,  is  not 
controlling. 

4.  The  size  of  the  package  in  which  bona  fide 
transactions  are  carried  on  between  the 
manufacturer  and  the  wholesale  dealer  re- 
siding in  different  States  is  a  material  con- 
sideration. 

5.  The  motive  which  actuates  the  particular 
method  of  shipment  may  be  determined  from 
several  circumstances : 

a.  From  the  trifling  value  of  each  parcel. 

h.  The  absence  of  an  address  on  each 
package. 

c.  The  fact  that  many  parcels,  for  the 
purpose  of  the  shipment,  are  aggre- 
gated. 

TRADEMARKS. 

In  the  Trade-Mark  Cases,^  it  was  ruled  that  the  General 
original  trademark  act^  was  mvalid  tor  want  oi  invalid. 
constitutional  authority,  inasmuch  as  it  was  not 

8  (1879)   100  U.  S.  82. 

9  Act  of  Congress  of  July  8,  1870,  carried  forward  into  §§  4937- 
4947,  Rev.  Stat.  U.  S.,  7  Fed.  Stat.  Annot.  326. 


128  REGULATION   OF   COMMEECE 

Chapter  confined  to  the  case  of  a  trademark  used  in  foreign 
'  or  interstate  commerce,  but  had  the  broad  purpose 
of  establishing  a  universal  system  of  trademark 
registration  for  the  benefit  of  all  who  had  already 
used  a  trademark,  or  wished  to  adopt  one  in  the 
future,  without  regard  either  to  the  character  of 
the  trade  to  which  it  was  to  be  applied,  whether 
domestic  as  to  a  State  or  otherwise,  or  to  the  resi- 
dence of  the  owner. 

As  a  result  of  this  decision,  another  act  entitled 
*^An  Act  to  authorize  the  registration  of  trade- 
marks and  protect  the  same,"^  was  passed,  and  in 
Warner  v.  Searle,  etc.,  Co.,^  after  quoting  from  the 
new  statute,  the  court  said :  ' '  Obviously  the  act  was 
passied  in  view  of  the  decision  that  the  prior  act  was 
unconstitutional,  and  it  is,  therefore,  strictly  limited 
to  lawful  commerce  with  foreign  nations  and  with 
Indian  tribes.  It  is  only  the  trademark  used  in 
such  commerce  that  is  admitted  to  registry,  and  it 
can  only  be  infringed  when  used  in  that  commerce, 
without  right,  by  another  than  its  owner. ' ' 
Trademark  The  qucstiou  of  its  coustitutiouality  was  not 
of  com-  decided,  however,  evidently  on  the  aspect  suggested 
by  Mr.  Justice  Miller  in  the  Trade-Mark  Cases, 
supra,  when  he  said:  **  The  question,  therefore, 
whether  the  trademark  bears  such  a  relation  to  com- 
merce in  general  terms  as  to  bring  it  within  con- 
gressional control,  when  used  or  applied  to  the 
classes  of  commerce  which  fall  within  that  control, 
is  one  which,  in  the  present  case,  we  propose  to 
leave  undecided. "  ^ 

lAct  of  Congress  of  March  3,  1881,  c.  138,  7  Fed.  Stat.  Annot. 
329.  The  statute  is,  in  terms,  limited  to  "  trademarks  used  in  com- 
merce with  foreign  nations,  or  with  the  Indian  tribes." 

2  (1903)  191  U.  S.  195. 

•  See  also  Elgin  Nat.  Watch  Co.  v.  Illinois  Watch  Case  Co., 


zoerce. 


BEGULATION   OF   COMMERCE  129 


Chapter 
STATUS   OF   C.    O.   D.    SHIPMENTS.  V. 


Where  merchandise  is  received  by  a  carrier  with  interstate 

_  *'  shipment 

a  duty  to  collect  the  price  on  delivery  to  the  con-  fn^eSatr 
signee  in  another  State,  the  shipment  constitutes  *=°™'"''^**- 
interstate  commerce.  It  matters  not  that  there  is 
a  diversity  of  opinion  among  the  State  courts  con- 
cerning the  effect  of  a  C.  O.  D.  shipment,  some 
courts  holding  that  under  such  a  shipment  the  prop- 
erty is  at  the  risk  of  the  buyer,  and,  therefore,  that 
delivery  is  completed  when  the  merchandise  reaches 
the  hands  of  the  carrier  for  transportation;  others 
deciding  that  the  merchandise  is  at  the  risk  of  the 
seller,  and  that  the  sale  is  not  completed  until  the 
pa3nnent  of  the  price  and  delivery  to  the  consignee 
at  the  point  of  destination. 

In  American  Express  Co.  v.  lowa,'^  wherein  was 
raised  the  question  of  the  operation  of  the  Iowa 
prohibition  law  under  the  Wilson  Act,^  as  to  a  ship- 
ment C.  0.  D.  from  the  State  of  Illinois,  Mr.  Justice 
White,  speaking  for  the  court,  said :  *  ^  Beyond  pos-  judicial  ob. 
sible  question,  the  contract  to. sell  and  ship  was  com- 
pleted in  Illinois.  The  right  of  the  parties  to  make 
a  contract  in  Illinois  for  the  sale  and  purchase  of 
merchandise,  and  in  doing  so  to  fix  by  agreement 
the  time  when  [and]  the  condition  on  which  the  com- 
pleted title  should  pass,  is  beyond  question.  The 
shipment  from  the  State  of  Illinois  into  the  State 
of  Iowa  of  the  merchandise  constituted  interstate 
commerce.     To   sustain,   therefore,   the   ruling  of 

(1901)  179  U.  S.  665,  wherein  the  court  refrained  from  passing 
upon  the  constitutionality  of  the  act,  the  point  not  having  been 
raised  in  the  lower  court. 

*  (1905)   196  U.  S.  133.     See  also  infra,  p.  308. 

5  See  effect  of  the  "  Wilson  Act,"  infra,  p.  146. 
9 


130  REGULATION   OF   COMMERCE 

^ter  the  court  below  would  require  us  to  decide  that  the 
*  __  law  of  Iowa  operated  in  another  State  so  as  to 
invalidate  a  lawful  contract  as  to  interstate  com- 
merce made  in  such  other  State ;  and,  indeed,  would 
require  us  to  go  yet  further,  and  say  that,  although 
under  the  interstate  commerce  clause  a  citizen  in  one 
State  had  a  right  to  have  merchandise  consigned 
from  another  State  delivered  to  him  in  the  State  to 
which  the  shipment  was  made,  yet  that  such  right 
was  so  illusory  that  it  only  obtained  in  cases  where 
in  a  legal  sense  the  merchandise  contracted  for  had 
been  delivered  to  the  consignee  at  the  time  and  place 
of  shipment/'  The  learned  justice  further  pointed 
out  that  to  sustain  the  doctrine  of  the  State  court, 
that  wherever  merchandise  shipped  from  one  State 
to  another  is  not  completely  delivered  to  the  buyer 
at  the  point  of  shipment  so  as  to  be  at  his  risk  from 
that  moment,  the  movement  of  such  merchandise  is 
not  interstate  commerce,  would  operate  materially  to 
xiripple  if  not  to  destroy  that  freedom  of  commerce 
between  the  States  which  it  was  the  great  purpose 
of  the  Constitution  to  promote;  it  would  prevent 
the  citizen  of  one  State  from  shipping  into  another 
unless  he  assumed  the  risk;  it  would  subject  con- 
tracts made  by  common  carriers  and  valid  by  the 
laws  of  the  State  where  made  to  the  laws  of  another 
State;  it  would  remove  from  the  protection  of  the 
interstate  commerce  clause  all  goods  on  consignment 
upon  any  condition  as  to  delivery,  express  or  im- 
plied; and,  besides,  it  would  also  render  the  com- 
merce clause  of  the  Constitution  inoperative  as  to 
Dill  that  vast  body  of  transactions  by  which  the  prod- 
ucts of  the  country  move  in  the  channels  of  inter- 
state commerce  by  means  of  bills  of  lading  to  the 
shipper's  order  with  drafts  for  the  purchase  price 


REGULATION    OF    COMMERCE  131 


attached,  and  many  other  transactions  essential  to    Ch^ter 
the  freedom  of  commerce,  by  which  the  complete  ' 

title  to  merchandise  is  postponed  to  the  delivery 
thereof.^ 

INTOXICATING  LIQUORS. 

The  doctrine  that  a  State  is  without  power  to  states  with- 
out author- 
prohibit  the  importation  of  goods  from  other  States  jJ^it^n^P^J: 

was  applied  to  intoxicating  liquors,  in  the  case  of  ^^^^ 

Bowman  v,  Chicago,  etc,  R.  Go?     An  Iowa  statute 

eSee  also  Norfolk,  etc.,  R.  Co.  v.  Sims,  (1903)  191  U.  S.  441; 
Parker  r.  State,  (Tex.  Crim.  1905)  85  S.  W.  Rep.  1155;  Sedgwick 
17.  State,  (Tex.  Crim.  1905)  85  S.  W.  Rep.  813.  But  compare  State 
V.  O'Neil,  (1885)  58  Vt.  140;  State  v.  Intoxicating  Liquors,  (1886) 
58  Vt.  594. 

Upon  an  indictment  against  an  express  company  for  delivering 
liquor  in  violation  of  law,  it  appeared  that  the  package  was  shipped 
C.  O.  D.;  that  the  consignee  had  not  ordered  it,  but  offered  to  take 
it  out  when  he  could  get  the  money  to  pay  for  it  and  the  charges; 
and  that  it  was  a  week  before  it  was  finally  delivered.  In  holding 
that  the  defendant  was  properly  convicted,  the  court,  in  Adams 
Express  Co.  v.  Com.,  (Ky.  1905)  87  S.  W.  Rep.  1111,  said:  "A 
failure,  therefore,  upon  their  part  to  immediately  —  that  is,  in  a 
reasonable  and  customary  time  —  deliver  goods  shipped  in  their 
charge,  or  their  holding  of  such  goods  an  unreasonable  or  unusual 
time,  changes  their  relations  at  once  from  a  common  carrier  to  that  of 
ordinary  warehouseman.  In  view  of  this  rule,  and  under  the  facts 
of  the  case  at  bar,  we  must  conclude  that  at  the  time  of  delivering 
to  Meece  the  whiskey  in  question,  and  in  receiving  the  price  paid 
by  the  latter  therefor,  appellant  did  not  sustain  to  that  article  of 
merchandise,  or  to  the  consignor  or  consignee,  the  relation  of  common 
carrier,  but  merely  that  of  a  bailee  or  warehouseman,  for  which 
reason  we  are  unable  to  see  how  it  was  or  could  have  been  protected 
in  the  transaction  by  the  law  of  interstate  commerce." 

M1888)   125  U.  *S.  465. 

In  that  case,  the  License  Cases,  (1847)  5  How.  (U.  S.)  504,  were 
reviewed.  The  question  in  those  cases  was  whether  certain  statutes 
of  Massachusetts,  Rhode  Island,  and  New  Hampshire,  relating  to  the 
«ale  of  spirituous  liquors  were  valid.  The  statutes  of  ^Massachusetts 
and  Rhode  Island  had  reference  to  the  sale  within  those  States 
respectively  of  intoxicating  liquor  imported  from  foreign  countries, 


132  REGULATION   OF   COMMERCE 

Chapter    attempted  to  forbid  common  carriers  from  bringing 
'  intoxicating  liquors  into  the  State  of  Iowa  from  an- 

other State  or  Territory  without  obtaining  a  certifi- 
cate required  by  the  laws  of  Iowa.  In  holding  that 
the  statute  was  a  regulation  directly  affecting  com- 
merce in  an  essential  and  vital  point,  the  court, 
through  Mr.  Justice  Matthews,  said  that  the  statute 
Prohibiting  *'  seeks  to  prohibit  and  stop  their  passage  and  im- 

transporta-  ^  jr  or  o 

tion.  portation  into  its  own  limits,  and  is  designed  as  a 

regulation  for  the  conduct  of  commerce  before  the 
merchandise  is  brought  to  its  border.  It  is  not  one 
of  those  local  regulations  designed  to  aid  and  facili- 
tate commerce ;  it  is  not  an  inspection  law  to  secure 
the  due  quality  and  measure  of  a  commodity;  it  is 
not  a  law  to  regulate  or  restrict  the  sale  of  an 
article  deemed  injurious  to  the  health  and  morals 
of  the  community;  it  is  not  a  regulation  confined  to 
the  purely  internal  and  domestic  commerce  of  the 
State;  it  is  not  a  restriction  which  only  operates 
upon  property  after  it  has  become  mingled  with 
and  forms  part  of  the  mass  of  the  property  within 
the  State.'' 
Prohibiting  Another  feature  of  the  Iowa  prohibitory  law, 
ported  *""  v/hich  prohibited  the  sale  of  intoxicating  liquors  ex- 
cept by  persons  holding  permits  authorizing  them 
to  sell  and  dispense  liquors  for  pharmaceutical  and 
medicinal  purposes,  and  alcohol  for  specified  chemi- 
cal purposes,  and  wine  for  sacramental  purposes, 
but  for  no  other  purposes  whatever,  came  in  for 

but  not  sold  or  offered  for  sale  within  the  State  by  the  importer  in 
original  packages.  The  statute  of  New  Hampshire,  however,  applied 
to  intoxicating  liquor  imported  from  another  State,  and  the  decision 
in  that  case  upheld  its  validity  in  reference  to  the  disposition  by  sale 
or  otherwise  of  the  intoxicating  liquor  after  it  had  been  brought  into 
the  State.  This  last  case  was  in  effect  overruled  by  the  Bowman  v, 
Chicago,  etc.,  R.  Co.*s  case. 


REGULATION    OF   COMMERCE  133 

judicial  condemnation,  in  Leisy  v.  Hardin,^  as  ap-    Chapter 
plied  to  liquors  imported  from  another  State  and  ' 

held  for  sale  in  the  original  packages;  wherein 
Chief  Justice  Fuller,  referring  to  cases  sustaining 
the  power  of  the  State  to  control  manufacture  and 
sale  within  the  State,  said  in  the  opinion  written 
for  the  court :  '  *  These  decisions  rest  upon  the  un- 
doubted right  of  the  States  of  the  Union  to  control 
their  purely  internal  affairs,  in  doing  which  they 
exercise  powers  not  surrendered  to  the  national 
government;  but  whenever  the  law  of  the  State 
amounts  essentially  to  a  regulation  of  commerce 
with  foreign  nations  or  among  the  States,  as  it  does 
when  it  inhibits,  directly  or  indirectly,  the  receipt 
of  an  imported  commodity  or  its  disposition  before 
it  has  ceased  to  become  an  article  of  trade  between 
one  State  and  another,  or  another  country  and  this, 
it  comes  in  conflict  with  a  power  which,  in  this  par- 
ticular, has  been  exclusively  vested  in  the  general 
government,  and  is  therefore  void. '  ^  ^ 

8  (1890)   135  U.  S.  100. 

^Followed  by  Lyng  v.  Michigan,  (1890)  135  U.  S.  161.  See  Kidd 
V.  Pearson,  (1888)   128  U.  S.  1,  referred  to  supra,  p.  111. 

See  also  Ex  p.  Jervey,  (1895)  66  Fed.  Rep.  957;  Jervey  v.  The 
Carolina,  (1895)  66  Fed.  Rep.  1013;  State  v.  Intoxicating  Liquors, 
(1900)  94  Me.  335. 

The  fact  that  the  shipper  is  a  resident  of  the  State  and  that  the 
contract  was  executed  in  the  State,  does  not  take  a  transaction  out 
of  interstate  commerce  and  make  it  a  State  transaction  when  the 
shipper's  place  of  business  is  in  another  State  and  the  products  are 
there  manufactured  and  shipped.  Sloman  v.  William  D.  C.  Moebs 
Co.,  (1905)   139  Mich.  334. 

Liquor  which  has  been  manufactured  by  the  citizens  of  a  State  in 
the  State,  sent  out  of  the  State,  and  then  shipped  back  into  the  State 
for  the  express  purpose  of  evading  the  prohibition  laws  of  the  State, 
never  became  a  subject  of  interstate  commerce.  Crigler  v.  Com.,  (Ky. 
1905)  87  S.  W.  Rep.  276. 

The  application  of  the  doctrine  that  a  State  is  without  power  to 
prohibit  the  importation  of  goods  from  other  States  has  been  modified 


134 


REGULATIOIT   OF   COMMERCE 


Chapter 


T 


Cigarettes 
as  legiti- 
mate 

articles  of 
commerce. 


CIGARETTES. 

In  the  case  of  cigarettes,  a  statute  of  Tennessee 
provided  ^^  that  it  shall  be  a  misdemeanor  for  any 
person,  firm,  or  corporation  to  sell,  offer  to  sell,  or 
to  bring  into  the  State  for  the  purpose  of  selling, 
giving  away,  or  otherwise  disposing  of,  any  ciga- 
rettes, cigarette  paper,  or  substitute  for  the  same.'' 
Upon  sustaining  a  conviction  for  a  sale  of  ciga- 
rettes in  violation  of  the  statute,  the  State  Supreme 
Court  placed  its  decision  upon  two  grounds :  First, 
that  cigarettes  are  not  legitimate  articles  of  com- 
merce; second,  that  the  sale  shown  to  have  been 
made  was  not  the  sale  of  an  original  package  in  the 
true  commercial  sense. 

The  Supreme  Court  of  the  United  States,  in 
Austin  V.  Tennessee^  affirmed  the  judgment  of  the 
State  court  upon  the  second  ground  stated,  which 
is  discussed  in  another  part  of  this  work,^  but  as 
to  the  first  ground,  that  cigarettes  are  not  legiti- 
mate articles  of  commerce,  Mr.  Justice  Brown,  writ- 
ing the  opinion  of  the  court,  said:  ^^  We  are  not 
prepared  to  fully  indorse  the  opinion  of  that  court 
upon  the  first  point.  Whatever  product  has  from 
time  immemorial  been  recognized  by  custom  or  law 
as  a  fit  subject  for  barter  or  sale,  particularly  if  its 
manufacture  has  been  made  the  subject  of  federal 
regulation  and  taxation,  must,  we  think,  be  recog- 
nized as  a  legitimate  article  of  commerce  although 
it  may  to  a  certain  extent  be  within  the  police  power 
of  the  States.     Of  this  class  of  cases  is  tobacco. 


by  federal  statutes,  as  applied  to  intoxicating  liquors  and  imitation 
dairy  products.    See  infra,  p.  143. 

1  (1900)   179  IT.  S.  343. 

2  See  «Mpra,  p.  123. 


REGULATION   OF   COMMERCE  135 

From  the  first  settlement  of  the  colony  of  Virginia    Chs^^er 
to  the  present  day  tobacco  has  been  one  of  the  ' 

most  profitable  and  important  products  of  agricul- 
ture and  commerce,  and  while  its  effects  may  be  in- 
jurious to  some,  its  extensive  use  over  practically 
the  entire  globe  is  a  remarkable  tribute  to  its  popu- 
larity and  value.  We  are  clearly  of  opinion  that  it 
cannot  be  classed  with  diseased  cattle  or  meats^ 
decayed  fruit,  or  other  articles  the  use  of  which  is 
a  menace  to  the  health  of  the  entire  community. 
Congress,  too,  has  recognized  tobacco  in  its  various 
forms  as  a  legitimate  article  of  commerce  by  requir- 
ing licenses  to  be  taken  for  its  manufacture  and 
sale,  imposing  a  revenue  tax  upon  each  package  of 
cigarettes  put  upon  the  market,  and  by  making  ex- 
press regulations  for  their  manufacture  and  sale, 
their  exportation  and  importation. ' '  And  the  stat- 
ute was  held  valid  as  to  sales  by  the  importer  not 
in  original  packages. 

As  applied,  however,  to  sales  in  original  pack-  J;;^^*^***"^ 
ages  of  cigarettes  manufactured  in  other  States,  pSgw, 
State  prohibitory  laws  are  invalid.^ 

OLEOMARGARINE. 

A  further  application  of  these  principles  was 
made  in  the  case  of  the  attempted  regulation  or  pro- 
hibition of  the  sale  of  oleomargarine.  Fully  recog- 
nizing the  power  of  a  State  to  prevent  the  sale  of 
an  adulterated  article,  Mr.  Justice  Peckham,  in 
Schollenberger  v.  Pennsylvania,"^  said:      ^^  But  in 

sSawrie  v.  Tennessee,    (1897)    82  Fed.  Rep.  615;   Iowa  v.  Mc-r 
Gregor,  :J896)  76  Fed.  Rep.  956. 
*  (1898)  171  U.  S.  1. 


136  EEGULATION   OF    COMMERCE 

carter  carrying  out  its  purposes  the  State  cannot  absolutely 

'  prohibit  the  introduction  within  the   State  of  an 

A  recog-  articlc  of  commerce  like  pure  oleomargarine.    It  has 

™™.rL  ceased  to  be  what  counsel  for  the  Commonwealth 

commerce. 

has  termed  it,  a  newly  discovered  food  product.  An 
article  that  has  been  openly  manufactured  for 
nearly  a  quarter  of  a  century,  where  the  ingredients 
of  the  pure  article  are  perfectly  well  known  and 
have  been  known  for  a  number  of  years,  and  where 
the  general  process  of  manufacture  has  been  known 
for  an  equal  period,  cannot  truthfully  be  said  to  be 
a  newly  discovered  product  within  the  proper  mean- 
ing of  the  term  as  here  used.  The  time  when  a 
newly  discovered  article  ceases  to  be  such  cannot 
always  be  definitely  stated,  but  all  will  admit  that 
there  does  come  a  period  when  the  article  cannot 
be  so  described.  In  this  particular  case  we  have  no 
difficulty  in  holding  that  oleomargarine  has  so  far 
ceased  to  be  a  newly  discovered  article  as  that  its 
nature,  mode  of  manufacture,  ingredients,  and  effect 
upon  the  health  are  and  have  been  for  many  years 
as  well  known  as  almost  any  article  of  food  in  daily 
of7nt?<iduc°  ^^®*  Therefore  if  we  admit  that  a  newly  discovered 
newiy^dis-  ^rticlc  of  food  might  be  wholly  prohibited  from 
article  of  being  introduced  within  the  limits  of  a  State,  while 
its  properties,  whether  healthful  or  not,  were  still 
unknown,  or  in  regard  to  which  there  might  still 
be  doubt,  yet  this  is  not  the  case  with  oleomargarine. 
If  properly  and  honestly  manufactured  it  is  con- 
ceded to  be  a  healthful  and  nutritious  article  of 
food.  The  fact  that  it  may  be  adulterated  does  not 
afford  a  foundation  to  absolutely  prohibit  its  intro- 
duction into  the  State.  Although  the  adulterated 
article  may  possibly  in  some  cases  be  injurious  to 


REGULATI03Sr   OF    COMMERCE  137 


the  health  of  the  public,  yet  that  does  not  furnish    Chapter 
a  justification  for  an  absolute  prohibition. '  *  ^  ' 

In  accordance  with  this  view,  in  Collins  v.  New  Requiring 

'  ^  oleomarga- 

HampsJiire,^  as  to  a  statute  prohibiting  the  sale  of  cllored^ 
oleomargarine  as  a  substitute  for  butter  unless  it  ^'^^' 
is  of  a  pink  color,  the  learned  justice  further  said: 
''  In  a  case  like  this  it  is  entirely  plain  that  if  the 
State  has  not  the  power  to  absolutely  prohibit  the 
sale  of  an  article  of  commerce  like  oleomargarine 
in  its  pure  state,  it  has  no  power  to  provide  that 
such  article  shall  be  colored,  or  rather  discolored, 
by  adding  a  foreign  substance  to  it  in  the  manner 
described  in  the  statute.  Pink  is  not  the  color  of 
oleomargarine  in  its  natural  state.  The  act  necessi- 
tates and  provides  for  adulteration.  ...  If  this 
provision  for  coloring  the  article  were  a  legal  con- 
dition, a  legislature  could  not  be  limited  to  pink  in 
its  choice  of  colors.  The  legislative  fancy  or  taste 
would  be  boundless.  It  might  equally  as  well  pro- 
vide that  it  should  be  colored  blue  or  red  or  black. 
Nor  do  we  see  that  it  would  be  limited  to  the  use  of 
coloring  matter.  It  might,  instead  of  that,  provide 
that  the  article  should  only  be  sold  if  mixed  with 
some  other  article  which,  while  not  deleterious  to 
health,  would  nevertheless  give  out  a  most  offensive 
smell.  "^ 

It  is  within  the  power  of  a  State,  nevertheless, 
to  exclude  from  its  markets  any  compound  manu- 

5  See  also  In  re  Brundage,  (1899)  96  Fed.  Rep.  963,  reversed  on 
other  grounds  in  Minnesota  v.  Brundage,  (1901)  180  U.  S.  499; 
Ex  p.  Scott,  (1895)  66  Fed.  Rep.  45;  In  re  Worthen,  (1891)  58  Fed. 
Rep.  467;  State  v.  Bruce,  (1904)  55  W.  Va.  384;  In  re  McAllister, 
(1892)  51  Fed.  Rep.  282;  In  re  Gooch,  (1890)  44  Fed.  Rep.  276. 

«  (1898)   171  U.  S.  30. 

TSee  also  Armour  Packing  Co.  v.  Snyder,  (1897)  84  Fed.  Rep. 
136. 


138  REGULATION   OF   COMMERCE 

ChM)ter    f actnred  in  anotlier  State,  whicli  has  been  artificially 
'        colored  or  adulterated  so  as  to  cause  it  to  look  like 
Stki?k"rti    ^^  article  of  food  in  general  use,  and  the  sale  of 
Colored  or    which  may,  by  reason  of  such  coloration  or  adulter- 
aduiterated  g^^j^jj^  chcat  tho  general  public  into  purchasing  that 
which  they  do  not  intend  to  buy.     And  in  Plumley 
V.  Massachusetts y^  it  was  held  that  a  statute  pre- 
venting the  sale  of  oleomargarine  in  imitation  of 
yellow  butter  produced  from  pure  unadulterated 
milk  or  cream  of  the  same,  and  containing  a  proviso 
that  nothing  therein  should  be  ^^  construed  to  pro- 
hibit the  manufacture  or  sale  of  oleomargarine  in  a 
separate  and  distinct  form,  and  in  such  manner  as 
will  advise  the  consumer  of  its  real  character,  free 
from  coloration  or  ingredient  that  causes  it  to  look 
like  butter, ' '  was  valid.    Attention  was  called  in  the 
opinion  of  the  court  to  the  fact  that  the  statute 
did  not  prohibit  the  manufacture  or  sale  of  all  oleo- 
Prohibiting  margarine,  but  only  of  such  as  was  colored  in  imita- 

s&lc  when 

colored  in  tiou  of  ycllow  buttcr  produced  from  unadulterated 
butter.  TaWk  or  cream  of  such  milk.  If  free  from  colora- 
tion or  ingredient  that  caused  it  to  look  like  butter, 
the  right  to  sell  it  in  a  separate  and  distinct  form 
and  in  such  manner  as  would  advise  the  consumer 
of  its  real  character  was  neither  restricted  nor  pro- 
hibited. The  court  held  that  under  the  statute  the 
party  was  only  forbidden  to  practice  in  such  matters 
a  fraud  upon  the  general  public;  that  the  statute 
sought  to  suppress  false  pretenses  and  to  promote 
fair  dealing  in  the  sale  of  an  article  of  food,  and 
that  it  compelled  the  sale  of  oleomargarine  for  what 
it  really  was  by  preventing  its  sale  for  what  it 
was  not;  and  that  the  term  **  commerce  among  the 
States  "  does  not  mean  a  recognition  of  a  right  to 

»  (1894)   155  U.  S.  461. 


REGULATION    OF    COMMERCE  139 

practice  a  fraud  upon  the  public  in  the  sale  of  an    Chapter 
article  even  if  it  has  become  the  subject  of  trade  in  ' 

different  parts  of  the  country.® 

COFFEE. 

In  the  exercise  of  its  police  powers,  a  State  has  Regruia- 

.  .  tions  pre- 

the  right  to  enact  such  legislation  as  it  may  deem  Jra1Jj"^r 
proper,  even  in  regard  to  articles  of  interstate  and  <*«^<^p^'°"- 
foreign  commerce,  for  the  purpose  of  preventing 
fraud  or  deception  in  the  sale  of  any  commodity  and 
to  the  extent  that  may  be  fairly  necessary  to  pre- 
vent the  introduction  or  sale  of  an  adulterated  arti- 
cle within  the  limits  of  the  State.  The  State  of 
New  York  enacted  a  statute  declaring  that  ^*  no 
person  shall  within  the  State  manufacture,  produce, 
compound,  brew,  distill,  have,  sell,  or  offer  for  sale 
any  adulterated  food  or  drug.  An  article  shall  be 
deemed  to  be  adulterated  within  the  meaning  of 
this  Act:  .  .  .  in  the  case  of  food,  ...  (6) 
if  it  be  colored  or  coated,  or  polished,  or  powdered, 
whereby  damage  is  concealed,  or  it  is  made  to  appear 
better  than  it  really  is,  or  of  greater  value.'' ^  An 
Act  of  Congress,  **  providing  for  the  inspection  of 
meats  for  exportation,  prohibiting  the  importation 
of  adulterated  articles  of  food  or  drink,  and  author- 

»See  also  In  re  Scheitlin,  (1900)  99  Fed.  Rep.  272;  State  v. 
Rogers,  (1901)  95  Me.  94;  In  re  Brosnahan,  (1883)  18  Fed.  Rep.  62; 
Waterbury  v.  Newton,  (1888)  50  N.  J.  L.  534,  as  to  oleomargarine 
colored  with  annotto;  State  v.  Addington,  (1882)  77  Mo.  110;  Mc- 
Cann  v.  Com.,   ( 1901 )    198  Pa.  St.  509. 

A  statute  requiring  the  packages  in  which  process  or  renovated 
butter  is  sold  to  be  plainly  marked  "  Renovated  Butter,"  does  not 
conflict  with  the  commerce  clause,  but  is  an  exercise  of  the  police 
power.     Hathaway  v.  McDonald,   (1902)   27  Wash.  659. 

1  Laws  of  the  State  of  New  York  of  1893,  c.  661,  §  41,  being  c.  25 
of  the  General  Laws  of  the  State  of  New  York. 


coated  and 

colored 

coffee. 


140  REGULATION   OF   CX)MMERCE 

ChM>ter  izing  the  President  to  make  proclamation  in  certain 
'  cases,"  declares  *^  that  it  shall  be  unlawful  to  im- 
port into  the  United  States  any  adulterated  or  un- 
wholesome food  or  drug,  or  any  vinous,  spirituous, 
or  malt  liquors,  adulterated  or  mixed  with  any 
poisonous  or  noxious  chemical,  drug,  or  other  ingre- 
dient injurious  to  health. ' '  ^ 

P'jobjbiting  In  Grossman  v.  Lurman^  the  validity  of  the 
State  statute  was  questioned  as  applied  to  coffee 
imported  from  a  foreign  coimtry,  which  was  of  a  low 
grade,  containing  many  poor,  withered,  and  black 
beans,  and  was  so  coated  and  colored  as  to  conceal 
the  damaged  portions,  or  to  make  it  to  appear  better 
than  it  really  was,  or  of  greater  value,  to  the  ordi- 
nary untrained  observer.  Upon  three  aspects  the 
statute  was  held  to  be  valid.  In  its  enactment  the 
State  but  exerted  its  reserved  police  power  to  legis- 
late for  the  protection  of  the  health  and  safety  of 
the  community  and  to  provide  against  deception  or 
fraud;  the  statute  did  not  cease  to  be  operative  as 
regards  food  products  imported  into  the  United 
States  through  the  channels  of  foreign  commerce 
after  the  enactment  by  Congress  of  the  federal 
statute  above  referred  to;  and  the  fact,  if  it  could 
be  established,  that  there  was  a  demand  in  some 
portions  of  the  country  for  artificially  colored  coffee, 
and  consequently  that  such  commodity  was  a  recog- 
nized article  of  commerce,  did  not  give  a  right  to 
deal  in  it  protected  by  the  commerce  clause,  and 
tmcontrolled  by  State  law.* 

2  Act  of  August  30,  1890,  c.  839,  §  2,  3  Fed.  Stat.  Annot.  136. 
«  (1904)   192  U.  S.  189. 

4  See  also  Arbucklc  v.  Blackburn,    (1903)    191   U.  S.  406,  4«- 
mUawg  the  appeal  from  (1902)  113  Fed.  Rep.  616. 


REGULATION   OF   COMMEBOB  141 


STOCKYARDS. 


Chapter 


T 


Upon  a  bill  in  equity  to  enjoin  the  commission  combjt"^- 
of  alleged  violations  of  the  Sherman  Anti-Trust  ^rt'.'o'S'n- 
Act,^  the  bill  charged  a  combination  of  a  dominant  Strict. 
proportion  of  the  dealers  in  fresh  meat  throughout 
the  United  States  not  to  bid  against  each  other  in 
the  live-stock  markets  of  the  different  States,  to  bid 
up  prices  for  a  few  days  in  order  to  induce  the  cattle 
men  to  send  their  stock  to  these  stockyards,  to  fix 
prices  at  which  they  would  sell,  and  to  that  end  to 
restrict  shipment  of  meat  when  necessary,  to  estab- 
lish a  uniform  rule  of  credit  to  dealers  and  to  keep 
a  blacklist,  to  make  uniform  and  improper  charges 
for  cartage,  and,  finally,  to  get  less  than  lawful  rates 
from  the  railroads  to  the  exclusion  of  competitors. 
In  the  opinion  of  the  court,^  written  by  Mr.  Justice 
Holmes,  holding  that  such  a  combination  was  within 
the  meaning  of  the  statute,  the  learned  justice  said: 
**  When  cattle  are  sent  for  sale  from  a  place  in 
one  State,  with  the  expectation  that  they  will  end 
their  transit,  after  purchase,  in  another,  and  when 
in  effect  they  do  so,  with  only  the  interruption  neces- 
sary to  find  a  purchaser  at  the  stockyards,  and  when 
this  is  a  typical,  constantly  recurring  course,  the 
current  thus  existing  is  a  current  of  commerce 
among  the  States,  and  the  purchase  of  the  cattle  is 
a  part  and  incident  of  such  commerce.  What  we 
say  is  true  at  least  of  such  a  purchase  by  residents 
in  another  State  from  that  of  the  seller  and  of  the 
cattle.'' 

There  is  a  distinction  between  such  a  business 
and  that  carried  on  by  members  of  a  live-stock  ex- 

5  Act  of  Congress  of  July  2,  1890,  c.  647,  7  Fed.  Stat.  Annot.  336. 
«  Swift  V.  U.  S.,  (1905)   196  U.  S.  375. 


142  REGULATION    OF    COMMERCE 

Chapter    change  as  brokers,  buying  and  selling  for  others. 

'        In  Hopkins  v.  U.  SJ  it  appeared  that  the  Kansas 

Business      Citv  livc-stock  exchange  was  carried  on  and  con- 

carned  on  *'  ^^ 

blnorLa  <i^cted  by  a  board  of  directors  at  the  Kansas  City 
exchange,  stockyards,  which  were  situated  partly  in  Kansas 
City  in  the  State  of  Missouri,  and  partly  in  Kansas 
City  in  the  State  of  Kansas,  the  building  owned 
by  the  stockyards  company  being  located  one-half 
within  the  State  of  Missouri  and  the  other  half  in 
the  State  of  Kansas;  and  half  the  members  of  the 
exchange  had  offices  and  transacted  business  in  the 
stockyards  and  in  that  part  of  the  building  which 
was  within  the  State  of  Kansas,  and  the  other  half 
in  that  part  of  the  building  which  was  in  the  State 
of  Missouri;  substantially  all  the  business  trans- 
acted in  the  matter  of  receiving,  buying,  selling,  and 
handling  their  live  stock  at  Kansas  City  was  carried 
on  by  the  members  of  the  exchange  as  commission 
merchants,  and  large  numbers  of  th«  live  stock  were 
shipped  from  other  States ;  when  this  stock  was  re- 
ceived at  the  stockyards  it  was  sold  by  the  members 
of  the  exchange  to  the  various  packing  houses  situ- 
ated at  Kansas  City,  Mo.,  and  Kansas  City,  Kans., 
and  it  was  sold  for  shipment  to  the  various  other 
markets,  particularly  Chicago,  St.  Louis,  and  New 
York.  The  ordinary  regulations  governing  the  con- 
duct of  such  a  business  were  held  to  be  rules  and 
charges  for  the  facilities  provided  for  the  transac- 
tion of  such  commerce,  and  not  to  constitute  viola- 
tions of  the  Anti-Trust  Act,  because  it  did  not  ap- 
pear that  the  parties  were  engaged  in  interstate 
commerce.® 

1  (1898)  171  U.  S.  578. 

•  See  Anderson  v.  U.  S.,  (1898)  171  U.  S.  «04. 


REGULATION    OF    COMMERCE 


143 


MAKING  IMPORTATIONS  SUBJECT  TO  STATE  LAWS 

WILSON    ACT. 


Chapter 


T 


Intoxicat- 
ing liquors 
and  imita- 
tion dairy 
products. 


In  the  cases  of  intoxicating  liquors  and  of  imita- 
tion dairy  products,  Acts  have  been  passed  by  Con- 
gress subjecting  those  articles,  when  transported 
into  any  State  or  Territory,  to  the  operation  of  the 
laws  of  such  State  or  Territory  enacted  in  the  exer- 
cise of  its  police  powers,  while  such  articles  are  in 
the  original  packages.^ 

The  Act  of  August  8,  1890,  generally  known  as  wiisonAct 
the  Wilson  Act,  was  passed  in  consequence  of  the 
decision  in  the  case  of  Leisy  v.  Harding  which  held, 

9  The  Act  of  August  8,  1890,  c.  728,  3  Fed.  Stat.  Annot.  853, 
provides :  "  That  all  fermented,  distilled,  or  other  intoxicating 
liquors  or  liquids  transported  into  any  State  or  Territory  or  remain- 
ing therein  for  use,  consumption,  sale,  or  storage  therein,  shall  upon 
arrival  in  such  State  or  Territory  be  subject  to  the  operation  and 
effect  of  the  laws  of  such  State  or  Territory  enacted  in  the  exercise 
of  its  police  powers,  to  the  same  extent  and  in  the  same  manner  aa 
though  such  liquids  or  liquors  had  been  produced  in  such  State  or 
Territory,  and  shall  not  be  exempt  therefrom  by  reason  of  being 
introduced  therein  in  original  packages  or  otherwise." 

The  Act  of  May  9,  1902,  c.  784,  §  1,  3  Fed.  Stat.  Annot.  127, 
provides:  "That  all  articles  known  as  oleomargarine,  butterine, 
imitation,  process,  renovated,  or  adulterated  butter,  or  imitation 
cheese,  or  any  substance  in  the  semblance  of  butter  or  cheese  not  the 
usual  product  of  the  dairy  and  not  made  exclusively  of  pure  and  un- 
adulterated milk  or  cream,  transported  into  any  State  or  Territory 
or  the  District  of  Columbia,  and  remaining  therein  for  use,  consump- 
tion, sale,  or  storage  therein,  shall,  upon  the  arrival  within  the 
limits  of  such  State  or  Territory  or  the  District  of  Columbia,  be 
subject  to  the  operation  and  effect  of  the  laws  of  such  State  or 
Territory  or  the  District  of  Columbia,  enacted  in  the  exercise  of  its 
police  powers  to  the  same  extent  and  in  the  same  manner  as  though 
such  articles  or  substances  had  been  produced  in  such  State  or 
Territory  or  the  District  of  Columbia,  and  shall  not  be  exempt  there- 
from by  reason  of  being  introduced  therein  in  original  packages  or 
otherwise."     See  U.  S.  v.  Green,   (1905)    137  Fed.  Rep.  179. 

1  (1890)  135  U.  S.  100,  wherein  Chief  Justice  Fuller  said: 
"Undoubtedly  it  is  for  the  legislative  branch  of  the  State  govern- 


144 


REGULATION   OF   COMMERCE 


Chapter 


T 


Judicial  re- 
view of 
cases  under 
the  Wilson 
Act. 


Sutute 
vaUd. 


as  has  been  heretofore  stated,  that  the  right  to  im- 
port intoxicating  liquors  from  one  State  into  another 
includes,  by  necessary  implication,  the  right  to  sell 
in  the  original  package  at  the  place  where  the 
importation  terminates. 

One  of  the  latest  cases  to  construe  and  apply  the 
Act  of  1890  is  that  of  Pabst  Brewing  Co.  v.  Cren- 
shaw.^ In  the  course  of  the  opinion  in  that  case  Mr. 
Justice  White  gives  a  review  of  the  previous  cases 
in  which  its  validity  and  purpose  were  determined 
and  its  relation  to  particular  State  laws  considered. 
The  learned  justice  said : 

*^  The  scope  of  this  Act  and  the  power  of  Con- 
gress to  adopt  it  were  passed  upon  in  In  re  Rahrer, 
(1891)  140  U.  S.  545.  The  scope  of  the  Act  was 
thus  stated  (p.  560) : 

*^  *  Congress  has  now  spoken  and  declared  that 
imported  liquors  or  liquids  shall,  upon  arrival  in  a 
State,  fall  within  the  category  of  domestic  articles 
of  a  similar  nature.' 

'*  It  was  decided  that  although  the  Act  had  the 
eifect  thus  stated  it  was  not  repugnant  to  the  Con- 
stitution of  the  United  States,  the  court  saying 
(p.  562) : 


mcnts  to  determine  whether  the  manufacture  of  particular  articles 
of  traffic,  or  the  sale  of  such  articles,  will  injuriously  affect  the 
public,  and  it  is  not  for  Congress  to  determine  what  measures  a 
State  may  properly  adopt  as  appropriate  or  needful  for  the  pro- 
tection of  the  public  morals,  the  public  health,  or  the  public  safety; 
but  notwithstanding  it  is  not  vested  with  supervisory  power  over 
matters  of  local  administration,  the  responsibility  is  upon  Congress, 
so  far  as  the  regulation  of  interstate  commerce  is  concerned,  to 
remove  the  restriction  upon  the  State  in  dealing  with  imported 
articles  of  trade  within  its  limits,  which  have  not  been  mingled 
with  the  common  mass  of  property  therein,  if  in  its  judgment  the 
end  to  be  secured  justifies  and  requires  such  action." 
2  (1906)198  U.  S.  17. 


REGULATION    OF    COMMBBCE  145 

^*  *  No   reason   is   perceived  why,   if   Congress    Chapter 
chooses  to  provide  that  certain  designated  subjects  ' 

of  interstate  commerce  shall  be  governed  by  a  rule 
which  divests  them  of  that  character  at  an  earlier 
period  of  time  than  would  otherwise  be  the  case,  it 
is  not  within  its  competency  to  do  so.' 

''  In  Rhodes  v,  Iowa,  (1898)  170  U.  S.  412,  the  no\*?p"- 
purport  of  the  Act  was  again  passed  upon.  Reiter-  wISkin 
ating  the  ruling  made  in  the  Rahrer  case,  it  was 
decided  that  whilst  the  Wilson  Act  caused  liquors 
shipped  into  Iowa  from  another  State  to  be  divested 
of  their  character  as  articles  of  interstate  commerce 
after  their  delivery  in  Iowa  to  the  person  to  whom 
consigned,  nevertheless  the  Act  did  not  authorize 
the  laws  of  Iowa  to  be  applied  to  such  merchandise 
whilst  in  transit  from  another  State  and  before  de- 
livery in  Iowa. 

''  In  Vance  v.  W.  A.  Vandercook  Co.,  (1898)  170  south^c«w 

'    ^  '  olina  Dis- 

U.  S.  438,  the  operation  of  a  liquor  law  of  South  ^^^^ 
Carolina  was  considered.  By  the  Act  in  question 
the  State  of  South  Carolina  took  exclusive  charge 
of  the  sale  of  liquor  within  the  State,  appointed  its 
agents  to  sell  the  same,  and  empowered  them  to 
purchase  the  liquor,  which  was  to  be  brought  into 
the  State  for  sale.  The  fact  was  that  by  the  Act  in 
question  the  State  of  South  Carolina,  instead  of 
forbidding  the  traffic  in  liquor,  authorized  it,  and 
engaged  in  the  liquor  business  for  its  own  account, 
using  it  as  a  source  of  revenue.  The  Act  in  addi- 
tion affixed  prerequisite  conditions  to  the  shipment 
into  South  Carolina  from  other  States  of  liquor  to 
a  consumer  who  had  purchased  it  for  his  own  use 
and  not  for  sale.  Considering  the  Wilson  Act  and 
the  previous  decisions  applying  it,  it  was  decided 
that  the  South  Carolina  law,  in  so  far  as  it  took 

10 


146  REGULATION   OF   COMMERCE 

Chapter  charge  in  behalf  of  the  State  of  the  sale  of  liquor 
'  within  the  State  and  made  such  sale  a  source  of 
revenue,  was  not  an  interference  with  interstate 
commerce.  In  so  far,  however,  as  the  State  law 
imposed  burdens  on  the  right  to  ship  liquor  from 
another  State  to  a  resident  of  South  Carolina  in- 
tended for  his  own  use  and  not  for  sale  within  the 
State,  the  law  was  held  to  be  repugnant  to  the  Con- 
ggt  to  stitution,  because  the  Wilson  Act,  whilst  it  delegated 
^^^  to  the  State  plenary  power  to  regulate  the  sale  of 
liquors  in  South  Carolina  shipped  into  the  State 
from  other  States,  did  not  recognize  the  right  of  a 
State  to  prevent  an  individual  from  ordering  liquors 
from  outside  of  the  State  of  his  residence  for  his 
own  consumption  and  not  for  sale. 

**  Quite  recently,  at  this  term,  in  American  Ex- 
press Co.  V.  Iowa,  (1905)  196  U.  S.  133,  and  Adams 
Express  Co.  v.  Iowa,  (1905)  196  U.  S.  147,  the  con- 
struction affixed  to  the  Wilson  Act  in  the  previous 
cases  was  applied,  and  the  power  of  the  State  of 
Iowa  to  control  the  sale  of  liquors  shipped  from 
another  State  into  that  State,  after  their  delivery 
to  the  consignee,  was  upheld." 
in  And  in  that  case  of  Pahst  Brewing  Co.  v.  Cren- 

shaw, supra,  it  was  held  that  a  Missouri  statute, 
creating  the  office  of  inspector  of  beer  and  malt 
liquors  and  providing  for  the  inspection  of  beer  and 
malt  liquors  sold  in  the  State,  and  authorizing  the 
collection  of  an  inspection  fee  imposed  upon  beer 
or  other  malt  liquors  when  shipped  from  other 
"States  into  Missouri,  after  its  delivery  within  that 
State  to  the  consignee,  and  when  held  for  sale  for 
consumption  in  Missouri  or  for  shipment  to  other 
States,  was  valid  under  the  Wilson  Act.  Four  of  the 
justices  dissented,  mainly  on  the  ground  that  as  the 
Missouri  law  was  denominated  in  its  text  an  inspec- 


REGULATION   OF    COMMERCE  147 

tion  law,  and  did  not  provide  an  adequate  inspection,    Chapter 
and   besides   imposed   a   burden   beyond   the   cost  ' 

of  inspection,  the  law  was  repugnant  to  the  Con- 
stitution of  the  United  States  when  tested  by  previ- 
ous decisions  determining  when  particular  inspec- 
tion laws  amount  to  a  regulation  of  commerce,  as 
in  the  cases  of  Atlantic,  etc.,  Tel.  Co.  v.  Philadel- 
phia,^ and  Postal  Tel.-Cahle  Co.  v.  New  Hope,'^  but 
the  court,  in  the  prevailing  opinion,  said :  * '  These 
cases,  however,  simply  considered  State  laws  which 
operated  upon  interstate  commerce.  To  apply  them 
to  the  Missouri  law  necessarily  involves  deciding 
that  the  malt  liquors  to  which  that  law  applied  had 
not  ceased  to  be  articles  of  interstate  commerce; 
and,  therefore,  again  merely  disregards  the  Wilson 
Act  and  the  decisions  of  this  court  concerning  it. 
Indeed,  the  whole  argument  upon  which  the  entire 
case  of  the  plaintiff  in  error  proceeds  rests  upon 
this  fallacious  assumption,  since  it  admits  on  the 
one  hand  the  validity  of  the  Wilson  Law,  and  yet 
seeks  to  take  this  case  out  of  the  reach  of  its  pro- 
visions by  distinctions  which  have  no  foundation 
in  reason,  unless  it  be  that  that  law  is  to  be  disre- 
garded or  held  to  be  unconstitutional. ' '  ^ 

3  (1903)   190  U.  S.  160. 

*  (1904)   192  U.  S.  55. 

5  It  has  been  held,  since  the  adoption  by  Congress  of  the  Act  of 
1890,  that  State  statutes  prohibiting  the  soliciting  of  orders  for 
liquor  to  be  shipped  into  the  State  to  the  purchaser  are  invalid, 
as  such  laws  are  not  police  regulations  within  the  meaning  of  the 
Act  of  Congress.  In  re  Bergen,  (1900)  115  Fed.  Rep.  339;  Ex  p, 
Loeb,  (1896)  72  Fed.  Rep.  657;  State  v.  Hickox,  (1902)  64  Kan.  650. 

A  statute  providing  that  "  no  action  shall  be  maintained  upon 
any  claim  or  demand,  promissory  note  or  other  security,  contracted 
or  given  for  intoxicating  liquors  sold  in  violation  of  this  chapter,  or 
for  any  such  liquors  purchased  out  of  the  State  with  intention  to 
sell  the  same  or  any  part  thereof  in  violation  thereof,"  is  valid  as 
to  the  purchase  of  liquors  outside  the  State.  Corbin  v.  Houlehan, 
(1905)   100  Me.  246. 


CHAPTER  VI. 

TEANSPORTATION  OF  PERSONS  AND  PROPERTY 
GENERALLY. 

INTERSTATE  AND   FOREIGN   TRANSPORTATION. 

Chapter    ^TRANSPORTATION  of  persons  and  property, 
^^'         I       by  land  or  water,  between  different  States  and 
between  the  United  States  and  foreign  coun- 
tries, constitutes  interstate  and  foreign  commerce.^ 
Conveyance  from  or  to  a  point  in  one  State  to  or 
from  some  point  in  another  State  is  as  much  inter- 
state commerce  as  that  which  passes  entirely  through 
a  State  from  its  point  of  original  shipment  to  its 
paramounti  destination.^      Such  regulations  as  Congress  may 
Congress,     lawf  ully  prescribe  or  authorize,  and  which  may  prop- 
erly be  deemed  in  regulation  of  interstate  commerce, 

1  Philadelphia,  etc.,  Steamship  Co.  v.  Pennsylvania,  (1887)  122 
U.  S.  326. 

"Transportation  for  others,  as  an  independent  business,  is 
commerce,  irrespective  of  the  purpose  to  sell  or  retain  the  goods 
which  the  owner  may  entertain  with  regard  to  them  after  they  shall 
have  been  delivered."  Per  Mr.  Justice  Holmes,  in  Hanley  v.  Kansas 
City  Southern  R.  Co.,  (1903)  187  U.  S.  617. 

2  Fargo  V.  Michigan,  (1887)  121  U.  S.  230. 

State  statutes  prohibiting  the  transportation  of  natural  gas  to 
points  outside  the  State  are  invalid.  Manufacturers  Gas,  etc.,  Co.  v. 
Indiana  Natural  Gas,  etc.,  Co.,  (1900)  155  Ind.  545;  Consumers'  Gas 
Trust  Co.  V.  Harless,  (1891)  131  Ind.  446;  State  v.  Indiana,  etc., 
Oil,  etc.,  Co.,  (1889)  120  Ind.  575. 

Prohibiting  the  use  of  more  than  the  natural  pressure  in  the 
transportation  of  natural  gas  was  held  to  be  valid  in  Jamieson  v. 
Indiana  Natural  Gas,  etc.,  Co.,  (1891)  128  Ind.  665.  But  contra, 
Benedict  v.  Columbus  Constr.  Co.,  (1891)  49  N.  J.  Eq.  23. 


BEGULATION    OF   COMMERCE  149 

are  paramount,^  and  the  power  to  regulate  or  forbid    Chapter 

the  sale  of  a  commodity  after  it  has  been  brought  

into  the  State  does  not  carry  with  it  the  right  and 
power  to  prevent  its  introduction  by  transportation 
from  another  State.* 

When  the  entire  subject  of  transportation  of  S?ono7' 
live  stock  from  one  State  to  another  is  taken  under  ^^^^  stock, 
direct  national  supervision  and  a  system  devised  by 
which  diseased  stock  may  be  excluded  from  inter- 
state commerce,  all  local  or  State  regulations  in  re- 
spect of  such  matters  and  covering  the  same  ground 
will  cease  to  have  any  force,  whether  formally 
abrogated  or  not.^ 

TBANSPOBTATION  BETWEEN  PLACES  IN  THE  SAME  STATE 
PASSING  OUTSIDE  THE  STATE. 

Continuous  transportation  between  points  in  the  Not 

domestic 

same  State,  when  part  of  the  route  is  outside  of  the  commerce. 
State,  and  over  the  high  seas  or  over  the  territory 
of  an  adjoining  State,  is  not  domestic  commerce. 

Respecting  vessels,  the  question  was  presented  Navigating 
in  Lord  v.  Goodall,  etc.,  Steamship  Co.^  as  to  the 
power  of  Congress  to  regulate  the  liability  of  the 
owners  of  vessels  navigating  the  high  seas,  but 
engaged  only  in  the  transportation  of  goods  and  pas- 

sReid  V.  Colorado,  (1902)  187  U.  S.  137. 

4  Bowman  v.  Chicago,  etc.,  R.  Co.,  (1888)   125  U.  S.  465. 

See  supra,  p.  143. 

5Reid  V.  Colorado,  (1902)  187  U.  S.  137.  See  also  U.  S.  v.  Bos- 
ton, etc.,  R.  Co.,  (1883)  15  Fed.  Rep.  209;  Crawford  v.  Southern  R. 
Co.,  (1899)  56  S.  Car.  136;  Gulf,  etc.,  R.  Co.  v.  Gray,  (Tex.  Civ. 
App.  1894)  24  S.  W.  Rep.  837. 

A  State  statute  requiring  railroads  to  furnish  double-decked  cars 
for  the  shipment  of  sheep  was  held  to  be  invalid  as  a  regulation  of 
commerce,  as  applied  to  interstate  shipments.  Stanley  v.  Wabash, 
etc.,  R.  Co.,  (1890)   100  Mo.  435. 

•  (1880)  102  U.  S.  541. 


150 


REGULATION   OF   COMMERCE 


Chapter 
VI. 


Distinction 
between 
power  to 
tax  and  to 
regulate 
rates. 


sengers  between  ports  and  places  in  the  same  State. 
Finding  ample  authority  in  Congress  over  the  sub- 
ject, Chief  Justice  Waite,  speaking  for  the  courts 
said:  **  While  on  the  ocean  [the  ship's]  national 
character  only  was  recognized,  and  she  was  subject 
to  such  laws  as  the  commercial  nations  of  the  world 
had,  by  usage  or  otherwise,  agreed  on  for  the  gov- 
ernment of  the  vehicles  of  commerce  occupying  this 
common  property  of  all  mankind.  She  was  navi- 
gating among  the  vessels  of  other  nations  and  was 
treated  by  them  as  belonging  to  the  country  whose 
flag  she  carried.  True,  she  was  not  trading  with 
them,  but  she  was  navigating  with  them,  and  conse- 
quently with  them  was  engaged  in  commerce.  If 
in  her  navigation  she  inflicted  a  wrong  on  another 
country,  the  United  States,  and  not  the  State  of 
California,  must  answer  for  what  was  done.  In 
every  just  sense,  therefore,  she  was,  while  on  the 
ocean,  engaged  in  commerce  with  foreign  nations, 
and  as  such  she  and  the  business  in  which  she  was 
engaged  were  subject  to  the  regulating  power  of 
Congress. ' '  ^ 

So  far  as  railroads  are  concerned,  a  distinction 
has  been  made  as  to  the  power  of  a  State  over  trans- 
portation from  and  to  points  within  the  State  pass- 
ing outside  the  State,  between  the  right  to  tax  and 
the  power  to  regulate  the  rates  on  such  transporta- 

7  See  further  infra,  as  to  limitation  of  vessel-owner's  liability, 
p.  221. 

Vessels  are  not  engaged  in  domestic  commerce  when  their  voyages 
require  them  to  navigate  the  ocean  beyond  the  marine  league. 
Pacific  Coast  Steam-Ship  Co.  v.  Railroad  Com'rs,  (1883)  18  Fed. 
Rep.  10. 

It  may  be  inferred  from  the  route  pursued  by  the  boat  and  the 
connection  between  the  boat  and  railroads  at  each  end  of  her  route 
that  the  boat  is  to  some  extent  engaged  in  interstate  commerce  —  to 
what  extent  is  immaterial.  The  Hazel  Kirke,  (1885)  25  Fed.  Rep. 
601. 


EEGULATION    OF    COMMERCE  151 

tion.     In  Lehigh  Valley  R.  Co.  v.  Pennsylvania  ^  the    Charttor 

right  of  a  State  to  tax  the  receipts  on  transportation  

between  two  points  within  the  State  when  the  route 
is  partly  over  an  adjoining  State,  was  affirmed,  as 
the  tax  was  determined  in  respect  of  receipts  for  the 
proportion  of  the  transportation  within  the  State, 
Chief  Justice  Fuller  saying :  ^  ^  While  interstate  com- 
merce cannot  be  regulated  by  a  State  by  the  laying 
of  taxes  thereon,  in  any  form,  yet  whenever  the  sub- 
jects of  taxation  can  be  separated  so  that  that  which 
arises  from  interstate  commerce  can  be  distinguished 
from  that  which  arises  from  commerce  wholly 
within  the  State,  the  distinction  will  be  acted  upon  by 
the  courts,  and  the  State  permitted  to  collect  that 
arising  upon  commerce  solely  within  its  own  terri- 
tory.'^  But  in  respect  to  what  may  be  understood 
as  regulation,  as  distinguished  from  taxation,  the 
doctrine  of  the  separability  of  interstate  and  domes- 
tic commerce  is  not  recognized.  In  Hanley  v. 
Kansas  City  Southern  R.  Co.^  this  distinction  was 
clearly  made,  and  the  right  of  a  State  to  regulate 
the  rates  on  such  transportation  was  denied.  A 
State  may  levy  a  proportioned  tax  in  the  case  of 
commerce  admitted  to  be  interstate,  but  when  a  rate 
is  established  it  must  be  established  as  a  whole. 

The  first  rule  stated  has  been  further  applied  Transpor- 
recently^  in  an  attempt  to  apply  the  provisions  of  boundarr 
the  Sherman  Anti-Trust  Act  to  the  case  of  a  con- 
tract of  sale  of  vessels,  in  which  the  vendors  agreed 
that  for  a  specific  term  they  would  not  be  engaged 
in  running  or  operating  or  in  any  way  be  interested 
in  any  freight  or  passenger  packet  business  between 

«  (1892)  145  U.  S.  192. 
»  (1903)  187  U.  S.  617. 
1  Cincinnati,  etc.,  Packet  Co.  u.  Bay,  (1908)  200  U.  S.  179. 


river.. 


152  BBGULATION  OF   COMMBBCB 

Otepter    certain  places  within  the  same  State,  on  a  river 

forming  the  boundary  between  that  and  another 

State.  While  it  was  held  that  such  a  contract  is 
not  in  restraint  of  trade  within  the  meaning  of  the 
statute,  the  point  decided,  which  is  of  interest  here, 
was  that  the  transportation  over  a  boundary  river, 
between  two  points  in  the  same  State,  and  passing 
over  the  soil  of  the  other  State,  is  not  interstate  com- 
merce. Mr.  Justice  Holmes,  writing  the  opinion  of 
the  court,  said  that  it  would  be  an  extravagant  con- 
sequence to  draw  from  Hartley  v.  Kansas  City 
Southern  R.  Co.,  supra,  a  case  of  a  State  attempting 
to  fix  rates  over  a  railroad  route  passing  outside  its 
limits,  that  the  contract  in  this  case  was  within  the 
Sherman  Act. 

DURATIOH^  OF  FEDEEAL  PEOTECTION  FEOM  OPERATION  OF 
STATE    LAWS. 

Property  becomes  the  subject  of  interstate  and 

foreign  commerce  only  when  actually  in  transit  from 

one  State  to  another  or  to  a  foreign  country.^ 

^j^i^-^  Though  goods  are  purchased^  or  manufactured 

*'P**''-        for  export,  they  are  not  exempt  from  the  operation 

2Kelleyt;.IUioads,  (1903)   188  U.  S.  1. 

8  Myers  v.  Baltimore  County,  (1896)  83  Md.  385;  Carrier  v.  Gor- 
don, (1871)  21  Ohio  St.  605. 

If  cotton,  intended  for  export,  is  entered  with  a  common  carrier 
which  refuses  to  give  a  foreign  bill  of  lading  and  gives  local  bills 
of  lading  for  transportation  over  its  line  within  the  State,  and  the 
shipper  negotiates  with  connecting  lines  for  the  exchange  of  the  local 
bills  of  lading  for  foreign  bills  and  for  the  completion  of  the  foreign 
transportation,  the  cotton  is  not  subject  to  State  regulations  regard- 
ing compressing  cotton.    State  v.  International,  etc.,  E.  Co.,  <11>03) 

31  TeT.  Civ.  App.  219. 

On  the  other  hand,  in  State  v.  San  Antonio,  etc.,  R.  Co.,  (1903) 

32  Tex.  Civ.  App.  58,  it  was  held,  that  when  cotton  was  purchased 
at  differrat  points  in  tine  State  lor  export,  eollecting  it  at  «.  central 


REGULATION   OF   COMMERCE  153 

of  State  laws.     In  Kidd  v.  Pear  son, '^^  wherein  the    Chapter 

question  was  discussed  whether  the  right  of  a  State  

to  enact  a  statute  prohibiting  within  its  limits  the 
manufacture  of  intoxicating  liquors,  except  for  cer- 
tain purposes,  could  be  overthrown  by  the  fact  that 
the  manufacturer  intended  to  export  the  liquors 
when  made,  it  was  held  that  the  intent  of  the  manu- 
facturer did  not  determine  the  time  when  the  article 
or  product  passed  from  the  control  of  the  State  and 
belonged  to  commerce,  and  that,  therefore,  the 
statute,  in  omitting  to  except  from  its  operation  the 
manufacture  of  intoxicating  liquors  within  the  limits 
of  the  State  for  export,  did  not  constitute  an  unau- 
thorized interference  with  the  right  of  Congress  to 
regulate  commerce.  And  in  Coe  v,  Errol^  logs 
which  had  been  cut  in  the  State  of  Maine,  and  others 
which  had  been  cut  in  the  State  of  New  Hampshire, 
were  floated  in  course  of  transit  down  a  stream  in 
New  Hampshire  to  the  town  of  Errol,  in  the  latter 
State;  thence  to  be  floated  down  the  Androscoggin 
river  to  the  State  of  Maine.  The  town  of  Errol 
assessed  upon  the  property  a  county,  town,  school, 
and  highway  tax.  The  tax  was  sustained  by  the 
Supreme  Court  of  New  Hampshire  as  to  the  logs 
cut  in  that  State,  and  abated  as  to  those  cut  in 
Maine.  In  affirming  the  judgment  of  the  State 
court,  Mr.  Justice  Bradley,  delivering  the  opinion 
of  the  court,  said:  ^*  There  must  be  a  point  of  time 
when  they  [goods  intended  for  export]  cease  to  be 
governed  exclusively  by  the  domestic  law  and  begin 

point  for  classification  and  grading,  with  the  shifting  of  the  bales 
from  one  bill  of  lading  to  another,  did  not  transform  the  foreign 
shipments  into  local  ones. 

4  (1888)  128  U.  S.  1.  See  also  People  v.  Niagara  Fruit  CJo., 
(1903)  173  N.  Y.  629,  affirming  (1902)  75  N.  Y.  App.  Div.  11. 

6  (1886)  116  U.  S.  517. 


154 


REGULATION   OF    COMMERCE 


Chapter 


Commence- 
ment of 
final  move- 
menu 


Commit- 
ment to 
common 
carrier. 


While  in 
possession 
of  domestic 
carrier. 


to  be  governed  and  protected  by  the  national  law  of 
commercial  regulation,  and  that  moment  seems  to 
ns  to  be  a  legitimate  one  for  this  purpose,  in  which 
they  commence  their  final  movement  for  transporta- 
tion from  the  State  of  their  origin  to  that  of  their 
destination.  When  the  products  of  the  farm  or  the 
forest  are  collected  and  brought  in  from  the  sur- 
rounding country  to  a  town  or  station  serving  as  an 
entrepot  for  that  particular  region,  whether  on  a 
river  or  a  line  of  railroad,  such  products  are  not 
yet  exports,  nor  are  they  in  process  of  exportation, 
nor  is  exportation  begun  until  they  are  committed 
to  the  common  carrier  for  transportation  out  of  the 
State  to  the  State  of  their  destination,  or  have 
started  on  their  ultimate  passage  to  that  State. 
Until  then  it  is  reasonable  to  regard  them  as  not 
only  within  the  State  of  their  origin,  but  as  part  of 
the  general  mass  of  property  of  that  State,  subject 
to  its  jurisdiction,  and  liable  to  taxation  there,  if  not 
taxed  by  reason  of  their  being  intended  for  exporta- 
tion, but  taxed  without  any  discrimination,  in  the 
usual  way  and  manner  in  which  such  property  is 
taxed  in  the  State.*' ^ 

So  that  this  movement  of  interstate  or  foreign 
commerce  begins  when  the  articles  have  been 
shipped  or  started  for  transportation  from  a  State, 
and  though  a  vessel,  on  which  goods  destined  for 
other  States  are  being  carried,  plies  entirely  within 
the  limits  of  a  State  and  does  not  run  in  connection 
with,  or  in  continuation  of,  any  line  of  vessels  or 
railway  leading  to  other  States,  the  goods,  being  in 
possession  of  a  common  carrier  and  in  the  course 
of  transit  to  another  State,  are  subjects  of  interstate 


«  See  also  Diamond  Match  Co.  v.  Ontonagon,  (1903)  188  U.  S.  82. 


REGULATION    OF    COMMERCE  155 

commerce/  but  the  carrying  of  them  in  carts  or    Chapter 
other  vehicles,  or  even  floating  them,  to  the  depot  ' 

where  the  journey  is  to  commence,  is  no  part  of  the 
interstate  journey.^ 

Temporary  detention  in  transit  does  not  subject  ^^11^1^*="" 
property  to  the  operation  of  State  law.^  Just  as  JSn^t^'*''' 
gooiis  are  within  federal  protection  as  soon  as  they 
are  actually  delivered  to  a  common  carrier,  so  they 
continue  under  that  protection  until  they  have  been 
delivered  to  the  consignee.  Moving  goods  shipped 
from  a  point  without  the  State,  from  a  platform  at 
the  depot  to  the  freight  warehouse,  is  a  part  of  inter- 
state transportation.^      And  when  cars  containing 

7  The  Daniel  Ball,  (1870)  10  Wall.  (U.  S.)  557,  Mr.  Justice 
Field  saying  for  the  court:  "The  fact  that  several  different  and 
independent  agencies  are  employed  in  transporting  the  commodity, 
some  acting  entirely  in  one  State,  and  some  acting  through  two  or 
more  States,  does  in  no  respect  affect  the  character  of  the  transaction. 
To  the  extent  in  which  each  agency  acts  in  that  transportation  it  is 
subject  to  the  regulation  of  Congress." 

Interstate  commerce  begins  by  the  actual  delivery  to  a  common 
carrier  for  transportation,  or  the  actual  commencement  of  its  trans- 
fer to  another  State.  U.  S.  v.  Boyer,  (1898)  85  Fed.  Rep.  425;  In  re 
Greene,  (1892)  52  Fed.  Rep.  104;  Bennett  v.  American  Express  Co., 
(1891)  83  Me.  236;  Houston  Direct  Nav.  Co.  v.  Insurance  Co.  of 
North  America,   (1895)    89  Tex.  1. 

8Coe  V.  Errol,   (1886)   116  U.  S.  517. 

A  distinction  may  perhaps  be  here  made  between  the  rule  that 
goods  carried  by  a  domestic  connecting  carrier  in  the  course  of  inter- 
state transportation  are  within  the  protection  of  the  commerce  clause, 
and  the  principle,  if  it  be  a  sound  one,  that  Congress  cannot  subject 
a  carrier,  operating  wholly  within  a  State,  to  federal  regulations 
unless  such  carrier  engages  in  interstate  commerce  by  making  an 
arrangment  with  shippers  or  connecting  carriers  for  continuous  car- 
riage.    See  infra,  p.  158. 

»A  dining  car  is  under  the  control  of  Congress  while  in  the  act 
of  making  its  interstate  journey,  and  is  equally  so  when  waiting 
for  the  train  to  be  made  up  for  the  next  trip.  Johnson  v.  Southern 
Pac.  R.  Co.,  (1904)  196  U.  S.  1.  See  also  Delaware,  etc.,  Canal  Co. 
V.  Com.,   (Pa.  1888)    17  Atl.  Rep.  175. 

1  Rhodes  v.  Iowa,  (1898)   170  U.  S.  412. 


cases, 


156  REGULATION  OF   COMMEBCB 

Chapter  freight  have  not  been  delivered  to  the  consignee, 
'  but  remain  on  the  tracks  of  the  railway  company  in 
the  condition  in  which  they  have  been  brought  into 
the  State,  the  interstate  transportation  of  the  prop- 
erty has  not  been  completed.^ 

When  As  soon  as  goods  arrive  in  a  State  and  become 

goods  be- 

jecTto^sute  P^^^  ^^  ^^^  general  mass  of  property,  they  become 
^*'^*-  amenable  to  State  laws,^  and  this  time  is  said  to 

arrive  when  the  original  package  is  no  longer  such 
in  the  hands  of  the  importer,  that  is,  when  he  has 
either  sold  the  goods  in  the  original  package  or  the 
original  package  has  been  broken  up  in  his  hands.* 
cmi^  barge  T}ie  coal  barge  cases  furnish  peculiar  illustra- 
tions of  this  rule.  In  Brown  v.  Houston,^  coal  mined 
in  Pennsylvania  was  from  that  State  imported  into 
the  State  of  Louisiana.  While  afloat  in  the  Missis- 
sippi river,  in  the  parish  of  New  Orleans,  it  was 
offered  for  sale,  and  it  was  held  that  it  had  become 
part  of  the  property  of  the  State  and  was  subject 
to  State  taxation.  It  was  also  so  held  in  Pittsburg, 
etc.,  Coal  Co.  v.  Bates,^  wherein  the  coal  had  not 
reached  its  exact  destination,  and,  to  accommodate 
the  exigencies  of  the  owner's  business,  the  barges, 
about  one  hundred  in  number,  were  stopped  and 

2  McNeill  V.  Southern  R.  Co.,  (1906)  202  U.  S.  543. 

3  Brown  v.  Houston,  (1885)   114  U.  S.  622. 

♦  Leisy  v.  Hardin,  (1890)  135  U.  S.  100. 
To  goods  imported  from  foreign  States  this  same  principle  applies, 

but  there  is  a  distinction  between  the  power  of  the  State  to  tax  goods 
ae  property  which  have  come  from  other  States,  and  goods  imported 
from  foreign  countries,  a  distinction  created  by  the  positive  prohibi- 
tion of  the  clause  in  Article  I,  §  10,  declaring  that  "no  State 
shall,  without  the  consent  of  Congress,  lay  any. imposts  or  duties  on 
imports  or  exports."  The  question  is  discussed  in  a  subsequent 
part  of  this  work  under  the  power  of  the  State  to  tax  goods  in 
original  packages.  See  infra^  p.  292. 
6  (1885)   114  U.  S.  622. 

•  (1896)  156  U.  S.  577. 


BEGULATION   OF   COMMERCE  157 

moored  in  the  Mississippi  river  at  a  convenient  place    Chapter 
about  nine  miles  above  the  port  of  Baton  Rouge.  ' 

But  in  becoming  amenable  to  State  law,  it  is  only  Ji^n^^f 
to  such  laws  as  are  applicable  to  property  generally ;  S^'""'"*' 
the  goods  cannot  be  discriminated  against  on  account 
of  their  having  come  from  another  Stated 

From  these  propositions  it  may  be  stated  that 
there  may  be  an  interior  movement  of  property 
which  does  not  constitute  interstate  commerce, 
though  property  be  destined  to  or  come  from  an- 
other State;  in  the  one  case,  until  it  be  shipped  or 
started  on  its  final  journey,  it  is  subject  to  the  opera- 
tion of  State  law,  and  in  the  other  case,  though' it 
have  not  reached  its  place  of  disembarkation  or 
delivery,  it  may  become  subject  to  the  operation  of 
that  law,  but  only  in  this  latter  event,  probably, 
under  such  circumstances  as  are  suggested  by  the 
cases  of  Brown  v.  Houston,  and  Pittsburg,  etc.,  Coal 
Co.  V.  Bates,  supra.^ 

7  Howe  Mach.  Co.  v.  Gage,  (1879)  100  U.  S.  676;  Welton  v. 
Missouri,  (1875)  91  U.  S.  275;  Robbing  v.  Shelby  County  Taxing 
Dist.,  (1887)   120  U.  S.  489.    See  infra,  pp.  252,  315. 

8  Diamond  Match  Co.  v.  Ontonagon,  (1903)   188  U.  S.  82. 


CHAPTER  VII. 
EAILROAD  AND  EXPRESS  COMPANIES. 

GENEEAL   POWER   OF    CONGRESS   OVER  INTERSTATE 
CARRIERS. 


Chapter 
VII. 


Power  of 
Confirrcss 
paramount. 


Power  of 
Congress 
over  rail- 
road wholly 
intrasUte. 


' '  "^  I  "HE  power  of  Congress  to  subject  every 
1  carrier  engaging  in  interstate  commerce  to 
the  regulations  which  it  has  adopted  is  un- 
doubted/' said  Mr.  Justice  White,  in  New  York,  etc., 
R.  Co.  V.  Interstate  Commerce  Commission.^  So 
that  all  that  may  be  said  respecting  the  power  of 
the  States  to  make  regulations  affecting  carriers 
engaged  in  interstate  and  foreign  commerce  must 
be  understood  as  relating  to  the  exercise  of  a  police 
power,  and  subject  always  to  the  superior  right  of 
Congress  to  control  such  commerce.  Not  only  may 
Congress  subject  every  interstate  carrier  to  its  regu- 
lations, but  under  this  power  to  regulate  the  inter- 
state transportation  of  persons  and  property,  Con- 
gress may  authorize  the  construction  of  railroads,^ 
and  may  make  grants  of  land  for  rights  of  way,  even 
to  State  corporations.^ 

It  may  be  that  a  State  railroad  corporation  which 
operates  a  railroad  wholly  within  the  State  may 
not  be  legally  compelled  to  submit  itself  to  the  pro- 
visions of  an  Act  of  Congress,  even  when  carrying, 

1  (1906)  200  U.  S.  361. 

2  California  v.  Central  Pac.  R.  Co.,   (1888)   127  U.  S.  1. 

3  Cherokee  Nation  v.  Southern  Kansas  R.  Co.,  (1890)   135  U.  S. 
641. 


BEGULATION    OF    COMMERCE  159 

between  points  in  the  State,  freight  that  has  been    Chapter 
brought  from  or  that  is  intended  for  another  State.*  ' 

But  when  such  a  railroad  voluntarily  engages  as  a 
common  carrier  in  interstate  commerce  by  making 
an  arrangement  for  a  continuous  carriage  or  ship- 
ment of  goods  and  merchandise,  it  is  subject,  as  far 
as  such  traffic  is  concerned,  to  the  regulations  and 
provisions  of  the  Act  of  Congress.^ 

GENERAL  POWER   OF   THE   STATES   OVER   CARRIERS. 

It  will  be  noticed  that  the  discussion  throughout  subordi- 
nate power 
this  chapter  recognizes  generally  the  power  of  the  to  regulate 


earners  as 


States  to  adopt  regulations  respecting  carriers  as  jaiuiero?" 
instrumentalities  of  commerce,  in  the  absence  of  fed-  *=°"'°'^'^*'^- 
eral  regulations  on  the  subject.      It  has  been  held 
that  State  statutes  imposing  a  penalty  for  the  re- 
fusal of  a  railroad  company  to  receive  freight  ten- 
dered for  transportation,^  for  failure  to  ship  freight 

*  Cincinnati,  etc.,  R.  Co.  v.  Interstate  Commerce  Commission, 
(1896)   162  U.  S.  184. 

5  Interstate  Commerce  Commission  v.  Detroit,  etc.,  R.  Co.,  (1897) 
167  U.  S.  633. 

A  railroad  existing  under  the  laws  of  two  States  and  having  its 
main  lines  and  branches  wholly  within  those  States,  which,  by 
virtue  of  its  connections  at  several  points  with  railroads  of  other 
corporations,  and  of  traffic  contracts  and  agreements,  has  become  a 
link  in  a  through  line  of  road,  over  which  freight  and  passengers  are 
carried  into  and  out  of  other  States,  is,  as  to  those  other  States, 
engaged  in  interstate  commerce.  Norfolk,  etc.,  R.  Co.  v.  Pennsyl- 
vania, (1890)    136  U.  S.  114. 

By  the  employment  of  several  agencies  in  interstate  transporta- 
tion each  agency  is  engaged  in  interstate  commerce,  and  the  trans- 
portation of  goods  to  forwarding  agents  at  points  within  the  State, 
where  the  goods  are  not  unloaded,  bulk  is  not  broken,  nor  are  the 
cars  delayed  to  any  extent,  but  the  cars  are  at  once  transferred  to 
other  carriers  to  be  forwarded  to  their  ultimate  destination  outside 
the  State,  constitutes  interstate  commerce  and  is  not  subject  to  State 
regulation.    Cutting  v.  Florida  R.,  etc.,  Co.,  (1891)  46  Fed.  Rep.  641. 

«  Currie  v.  Raleigh,  etc.,  Air  Line  R.  Co.,  (1904)  135  N.  Car.  535. 


160  EEGULATION   OF   COMMERCE 

Copter  Avithin  a  prescribed  time,^  or  requiring  payment  of 
'  or  refusal  to  pay  a  claim  for  lost  or  damaged  goods 
w  ithin  a  certain  time,  are  valid,^  but  statutes  requir- 
ing freight  to  be  shipped  over  a  route  designated  by 
the  shipper,^  or  authorizing  service  of  attachment 
process  on  a  freight  car  loaded  with  interstate 
freight,  have  been  declared  to  be  interferences  with 
commerce.^ 

In  a  former  part  of  this  work  it  has  been  shown 
that  a  statute,  the  material  requirement  of  which  is 
that  when  the  shipper  of  freight  shall  make  a  requisi- 
tion in  writing  for  a  number  of  cars  to  be  furnished 
at  any  point  indicated  within  a  certain  number  of 
days  from  the  receipt  of  the  application,  and  shall 
deposit  one-fourth  of  the  freight  with  the  agent  of 
the  company,  the  company  failing  to  furnish  them 
shall  forfeit  twenty-five  dollars  per  day  for  each  car 
failed  to  be  furnished,  the  only  proviso  being  that 
the  law  '  *  shall  not  apply  in  cases  of  strikes  or  other 
public  calamity,"  while  not  far  from  the  line  of 
proper  police  regulation,  does  not  make  allowance 
for  the  practical  difficulties  in  the  administration 
of  the  law,  and,  as  applied  to  interstate  commerce, 
transcends  the  legitimate  powers  of  the  legislature.^ 

PEOHIBITING  CONSOLIDATION   OF  COMPETING  EOADS. 

sutesmay         A  State  may  prohibit  a  railroad  company  from 


prohibit 
combina- 

pcting   *"   parallel  or  competing  line,  or  from  operating  the 


combina-     acquiriug,  by  purchase,  lease,   or   otherwise,   any 


7  Bagg  V.  Wilmington,  etc.,  R.  Co.,  (1891)  109  N.  Car.  279. 

•  Porter  v.  Charleston,  etc.,  R.  Co.,  (1901)  63  S.  Car.  169. 

•  Lowe  V.  Seaboard  Air  Line  R.  Co.,  (1901)  63  S.  Car.  248. 

1  \\all  V,  Norfolk,  etc.,  H.  Co.,  (1903)  52  W.  Va.  485. 

2  Houston,  etc.,  R.  Co.  v.  Mayes,  (1906)  201  U.  S.  321,  reversing 
(1904)  36  Tex.  Civ.  App.  606.    See  supra,  p.  95. 


REGULATION   OF    COMMERCE 


161 


Chapter 

vn. 


same.  Such  action  is  a  legitimate  exercise  of  the 
police  power  of  the  State  to  create  and  regulate  the 
instruments  of  interstate  commerce,  so  far  as  neces- 
sary to  the  conservation  of  the  public  interests.* 
And  it  has  been  said  that  several  States  through 
which  interstate  railroads  run  may  authorize  the 
consolidation  of  the  roads  in  the  adjoining  States.* 

That  the  Sherman  Anti-Trust  Law  operates  to  ^/'fjJl*^'^^ 
prevent  parallel  or  competing  interstate  railroads  J?;!^;''^''"^ 
from  entering  into  contracts   or  combinations,   is 
pointed  out  in  a  previous  part  of  this  work.^ 


,     REGULATING  CONNECTING   CARRIERS. 

Eailroads  may  be  compelled  by  the  States  to 
make  track  connections  at  the  intersections  of  other 
roads  for  transferring  cars  from  the  lines  or  tracks 
of  one  company  to  those  of  another,  as  well  as  for 
facilities  for  the  interchange  of  cars  and  traffic 
between  their  respective  lines.^  Such  regulations, 
affording  facilities  to  interstate  commerce,  do  not 
regulate  such  commerce  within  the  meaning  of  the 
Constitution,  unless  in  particular  cases  they  conflict 
with  Acts  of  Congress.'^ 

But  the  imposition  upon  the  initial  or  any  con- 
necting carrier,  of  the  duty  of  tracing  the  freight 
and  informing  the  shipper,  in  writing,  when,  where, 
how,  and  by  which  carrier  the  freight  was  lost, 
damaged,  or  destroyed,  and  of  giving  the  names  of 
the  parties  and  their  official  position,  if  any,  by 


States  may 
require 
facilities 
for  inter- 
change of 
traffic. 


Requiringr 
connecting 
carrier  to 
furnish 
evidence   - 
of  loss. 


s  Louisville,  etc.,  R.  Co.  v.  Kentucky,  (1896)   161  U.  S.  677. 
*Boardman  v.  Lake  Shore,  etc.,  R.  Co.,  (1881)   84  N.  Y.  157. 
5  See  supra,  p.  42. 

•  Wisconsin,  etc.,  R.  Co.  v.  Jacobson,  (1900)   179  U.  S.  287. 
T  See  Council  BluflFs  v.  Kansas  City,  etc.,  R.  Co.  (1876)  45  Iowa 
338. 

11 


162  REGULATION   OF    COMMERCE 

Copter    whom  the  truth  of  the  facts  set  out  in  the  inf orma- 
,  tion  can  be  established,  is,  when  applied  to  interstate 

commerce,  a  violation  of  the  commerce  clause.® 
Such  a  statute  is  much  more  onerous  than  the  one 
sustained  in  Richmond,  etc.,  R.  Co.  v.  R.  A.  Patter- 
son Tobacco  Co.^  which  provided  that  although  a 
carrier  be  released  or  exempted  by  contract  from 
liability  beyond  its  own  line,  yet,  **  if  such  thing 
be  lost  or  injured  such  common  carrier  shall  himself 
be  liable  therefor,  unless,  within  a  reasonable  time 
after  demand  made,  he  shall  give  satisfactory  proof 
to  the  consignor  that  the  loss  or  injury  did  not 
occur  while  the  thing  was  in  his  charge.*'  Such  a 
statute  as  this  latter  one  simply  establishes  a  rule 
of  evidence  ordaining  the  character  of  proof  by 
which  a  carrier  might  show  that,  although  it  re- 
ceives goods  for  transportation  beyond  its  own  line, 
nevertheless,  by  agreement,  its  liability  is  limited  to 
its  own  line.  This  is  very  different  from  the  duty 
imposed  upon  the  carrier  by  the  former  statute, 
which  imposes  a  liability  unless  the  detailed  in- 
formation provided  for  in  the  statute  is  obtained 
and  given  to  the  shipper.^ 

8  Central  of  Georgia  R.  Co.  v.  Murphey,  (1905)  196  U.  S.  194, 
reversing  (1903)   116  Ga.  863. 

»  (1898)  169  U.  S.  311. 

1 A  Missouri  statute  providing  in  part  that  "  whenever  any 
'property  is  received  by  a  common  carrier  to  be  transferred  from  one 
place  to  another,  within  or  without  this  State,  or  when  a  railroad 
x)r  other  transportation  company  issues  receipts  or  bills  of  lading  in 
this  State,  the  common  carrier,  railroad,  or  transportation  company 
issuing  such  bill  of  lading  shall  be  liable  for  any  loss,  damage,  or 
injury  to  such  property,  caused  by  its  negligence  or  the  negligence 
of  any  other  common  carrier,  railroad,  or  transportation  company  to 
which  such  property  may  be  delivered,  or  over  whose  line  such  prop- 
erty may  pass;  and  the  common  carrier,  railroad,  or  transportation 
Tompany  issuing  any  such  receipt  or  bill  of  lading  shall  be  entitled 
to  recover,  in  a  proper  action,  the  amount  of  any  loss,  damage,  or 


REGULATION   OF    COMMERCE  163 


Chapter 
REGULATING  THE   OPERATION  OF   TRAINS.  VII. 


State  regulations  respecting  matters  pertaining  in  matters 
to  the  running  of  trains  may  be  adopted  and  en-  o^'c^nvXi. 
forced,  especially  when  they  concern  the  safety  or  public!^  ^^° 
2onvenience  of  the  public,  except  where  they  conflict 
with  valid  federal  regulations.^ 

Regulating  the  speed  of  railroad  trains  only  indi-  f  ^g^^^^f  "^ 
rectly  affects  interstate  commerce,   and  is  within  ^*'*"^*- 
the  power  of  the   State,   at  least  until   Congress 
acts   in   the  matter.^     In   Crutcher  v.   Kentucky  ^^ 

injury  it  may  be  required  to  pay  to  the  owner  of  such  property,  from 
the  common  carrier,  railroad,  or  transportation  company,  through 
whose  negligence  the  loss,  damage,  or  injury  may  be  sustained,"  waa 
construed  by  the  State  court  as  not  depriving  a  carrier  engaged  in 
interstate  traffic  from  limiting  his  liability  to  his  own  line.  As  so 
construed,  the  statute  was  held  to  be  valid.  Missouri,  etc.,  R.  Co.  v. 
McCann,   (1899)   174  U.  S.  580. 

A  statute  providing  that  "  when  there  are  several  connecting 
railroads  under  different  companies,  and  the  goods  are  intended  to 
be  transported  over  more  than  one  railroad,  each  company  shall  be 
responsible  only  to  its  own  terminus  and  until  delivery  to  the  con- 
necting road ;  the  last  company  which  has  received  the  goods  as  *  in 
good  order '  shall  be  responsible  to  the  consignee  for  any  damage, 
open  or  concealed,  done  to  the  goods,  and  such  companies  shall 
settle  among  themselves  the  question  of  ultimate  liability,"  was 
held  to  be  valid  as  affording  a  remedy  through  the  medium  of  a  rule 
of  evidence  prescribing  the  probative  value  of  a  voluntary  admission 
against  the  last  road  receiving  the  goods  as  "in  good  order." 
Kavanaugh  v.  Southern  R.  Co.,   (1904)    120  Ga.  62. 

2  A  State  may  require  carriers  to  post  in  conspicuous  places  at 
their  stations  the  time  of  the  arrival  of  trains,  whether  or  not  the 
trains  stopping  at  such  stations  are  on  time,  and,  if  late,  how  much, 
and  the  fact  that  in  order  to  carry  out  such  a  requirement  the 
carrier  may  have  to  bring  into  use  the  communication  of  informa- 
tion possessed  by  servants  at  one  point  on  the  line  of  the  road  to 
those  at  another  point  on  the  line,  situate  in  different  States,  does 
not  make  the  regulation  invalid.  State  v.  Indiana,  etc.,  R.  Co., 
(1892)   133  Ind.  69. 

Providing  for  the  lighting  of  railway  crossings  is  valid.  St. 
Bernard  v.  Cleveland,  etc.,  R.  Co.,  (1896)  4  Ohio  Dec.  371. 

3Erb  V.  Morasch,  (1900)  177  U.  S.  584. 

4  (1891)  141  U.  S.  47. 


164  REGULATION   OF   COMMERCE 

Chapter  Mr.  Justice  Bradley,  speaking  for  the  court,  said: 
'  *'  It  is  .  .  .  within  the  undoubted  province  of 
the  State  legislature  to  make  regulations  with  regard 
to  the  speed  of  railroad  trains  in  the  neighborhood 
of  cities  and  towns ;  with  regard  to  the  precautions 
to  be  taken  in  the  approach  of  such  trains  to  bridges, 
tunnels,  deep  cuts,  and  sharp  curves ;  and,  generally, 
with  regard  to  all  operations  in  which  the  lives  and 
health  of  people  may  be  endangered,  even  though 
such  regulations  affect  to  some  extent  the  operations 
of  interstate  commerce.  Such  regulations  are 
eminently  local  in  their  character,  and,  in  the  ab- 
sence of  congressional  regulations  over  the  same 
subject,  are  free  from  all  constitutional  objections, 
and  unquestionably  valid. ' '  ^ 
Examina-  A  State  may  prescribe  that  engineers  on  railroad 

tion  of  ,  ,  •  r» 

employees,  trams  engaged  m  the  transportation  of  passengers 
and  freight,  including  .  interstate  trains,  shall 
undergo  an  examination  by  a  State  board  as  to 
their  qualifications  before  becoming  entitled  to 
operate  locomotive  engines  within  the  State,^  and  a 
statute  which  declares  that  all  persons  afflicted  with 
color  blindness  and  loss  of  visual  power  to  the  extent 
therein  defined  are  *^  disqualified  from  serving  on 
railroad  lines  within  the  State  in  the  capacity  of 
locomotive  engineer,  fireman,  train  conductor, 
brakeman,  station  agent,  switchman,  flagman,  gate- 
tender,  or  signal  man,  or  in  any  other  position  which 

5  A  statute  which  prohibits  the  running  Of  trains  at  a  greater 
Bpeed  than  six  miles  an  hour  across  a  highway  in  or  near  thickly 
■ettled  localities  (Clark  v.  Boston,  etc.,  R.  Co.,  (1887)  64  N.  H. 
323),  and  a  municipal  ordinance  which  prohibits  the  running  of 
passenger  trains  at  a  greater  speed  than  ten  miles  an  hour  or  freight 
trains  at  a  greater  speed  than  six  miles  per  hour  (Chicago,  etc., 
R.  Co.  V.  Ciitlinville,  (1902)  200  111.  314),  havd  bcfen  held  valid. 

•  Smith  V.  Alabama,  (1888)  124  U.  S.  465. 


REGULATION   OF    COMMERCE  165 

requires  the  use  or  discrimination  of  form  or  color  Chapter 

signals,"  and  which  provides  for  their  examination  L_ 

and  periodical  re-examination,  is  valid/ 

A  State  statute  forbidding?  the  heating  of  pas-  Heating  of 

*="  o  i  passenger 

senger  cars  in  that  State  by  stoves  or  furnaces  kept  <=*"• 
inside  the  cars  or  suspended  therefrom  is  valid, 
although  such  cars  may  be  employed  in  interstate 
commerce,  when  Congress  has  not  adopted  any 
regulations  with  which  such  a  State  regulation  would 
conflict.^ 


Requiring  Trains  to  Stop  at  Certain  Stations, 

Several  State  statutes  regulating  the  stoppage 
of  trains  at  certain  places  have  been  before  the  Su- 
preme Court  of  the  United  States,  with  the  result  of 
determining  to  a  fmr  degree  of  clearness  the  line 
between  regulations  which  are  reasonable  and  valid 
and  those  which  are  unreasonable  and  invalid.  In 
the  earliest  of  these  cases,  Illinois  Cent.  R.  Co.  v. 
Illinois,^  the  provisions  of  an  Illinois  statute,  requir-  Requiring 

fast  train  tq 

mg  a  fast  mail  train  from  Chicago  to  places  south  of  JroJ^^^ireci 
the  Ohio  river,  over  an  interstate  highway  estab-  ''°'*'*^' 
lished  by  authority  of  Congress,  to  delay  the  trans- 
portation of  its  interstate  passengers  and  United 
States  mail,  by  turning  aside  from  its  direct  route 
and  running  to  a  station  three  and  one-half  miles 
away  from  a  point  on  that  route,  and  back  again  to 
tibe  same  point,  before  proceeding  on  its  way;  and 
to  do  this  for  the  purpose  of  discharging  and  re- 
ceiving passengers  at  that  station,  for  whom  the 
railroad  company  furnished  other  and  ample  accom- 

T  Nashville,  etc.,  R.  Co.  v.  Alabama,  (1«88)   128  U.  S.  M. 
8  New  York,  etc.,  R.  Co.  v.  New  York,  U897)   165  U.  «.  628. 
»  (1896)   163  U.  S.  142. 


166 


EEGULATION   OF    COMMERCE 


Chapter 
VII. 


At  county 
seats. 


At  towns 
over  a  cer- 
uin  size. 


At  county 
seats  re- 
gardless of 
number  of 
trains. 


inodation,  were  held  to  be  an  unreasonable  restric- 
tion of  interstate  traffic. 

Upon  the  contrary,  in  Gladson  v.  Minnesota,'^  a 
Minnesota  statute  requiring  every  railroad  to  stop 
all  its  regular  passenger  trains,  running  wholly 
within  the  State,  at  its  stations  in  all  county  seats 
long  enough  to  take  on  and  discharge  passengers 
with  safety,  was  held  to  be  a  reasonable  exercise  of 
the  police  power  of  the  State,  even  as  applied  to  a 
train  connecting  with  a  train  of  the  same  company 
running  into  another  State,  and  carrying  some  inter- 
state passengers  as  well  as  the  mail.  In  Lake  Shore, 
etc.,  R.  Co.  V.  Ohio  ^  a  statute  of  Ohio  providing  that 
every  railroad  company  should  cause  three  of  its 
regular  trains  carrying  passengers,  if  so  many  were 
run  daily,  Sundays  excepted,  to  stop  at  a  station, 
city,  or  village  containing  over  three  thousand  in- 
habitants, for  a  time  sufficient  to  receive  and  let  off 
passengers,  was  held  to  be,  in  the  absence  of  legisla- 
tion by  Congress  upon  the  subject,  consistent  with 
the  Constitution  of  the  United  States,  when  applied 
to  trains  engaged  in  interstate  commerce  through 
the  State  of  Ohio. 

Finally,  in  Cleveland,  etc.,  R.  Co.  v.  Illinois,^  the 
question  presented  was  whether  a  statute  of  Illinois 
was  valid  which  required  every  passenger  train,  re- 
gardless of  the  number  of  such  trains  passing  each 
way  daily  and  of  the  character  of  the  traffic  carried 
by  them,  to  stop  at  every  county  seat  through  which 
such  trains  might  pass  by  day  or  night,  and  regard- 
less also  of  the  fact  whether  another  train  desig- 
nated especially  for  local  traffic  might  stop  at  the 


1  (1897)  166  U.  S.  427. 
«  (1899)  173  U.  S.  286. 
•  (1900)  177  U.  S.  514. 


REGULATION   OF    COMMERCE 


167 


same  station  within  a  few  minutes  before  or  after 
the  arrival  of  the  train  in  question.  In  holding  the 
statute  to  be  a  direct  burden  upon  interstate  com- 
merce, the  court,  after  referring  to  the  cases  above 
mentioned,  said,  through  Mr.  Justice  Brown: 
**  With  no  disposition  whatever  to  vary  or  qualify 
the  cases  above  cited,  neither  the  conclusions  of  the 
court  nor  the  tenor  of  the  opinions  are  opposed  to 
the  principle  we  hold  to  in  this  case,  that,  after  all 
local  conditions  have  been  adequately  met,  railways, 
have  the  legal  right  to  adopt  special  provisions  for 
through  traffic,  and  legislative  interference  there- 
with is  unreasonable,  and  an  infringement  upon  that 
provision  of  the  Constitution  which  we  have  held 
requires  that  commerce  between  the  States  shall  be 
free  and  unobstructed. ' ' 


Cha 


hapfflr 


Accommodations  for  Different  Races. 
A  Louisiana  statute,  as  construed  by  the  State  Jj^^'jf^jjf' 


courts,  required  those  engaged  in  interstate  com- 
merce to  give  all  persons  traveling  in  that  State, 
upon  the  public  conveyances  employed  in  such  busi- 
ness, equal  rights  and  privileges  in  all  parts  of  the 
conveyance,  without  distinction  or  discrimination  on 
account  of  race  or  color.  In  Hall  v.  DeCuir  *  it  was 
held  that  the  statute  did  not  act  upon  interstate  busi- 
ness through  the  local  instruments  to  be  employed 
after  arriving  within  the  State,  but  directly  upon 
the  business  as  it  arrived  in  the  State  from  without 
or  went  out  from  within,  and  was  a  direct  burden 
upon  interstate  commerce. 

In  a  later  case,  that  of  Chesapeake,  etc..  /?.  Co. 
V.  Kentucky,^  the  question  presented  was  whether 

*  (1877)  95  U.  S.  485. 
6  (1900)   179  U.  S.  388. 


accommo- 
dations be 
given  to 
interstate 
passengers* 


Separate 
coach  law 


168  REGULATION   OF    COMMERCE 

Chapter  the  separate  coach  law  of  Kentucky,  requiring  all 
'  railroad  companies  operating  roads  within  the  State 
of  Kentucky,  whether  upon  lines  owned  or  leased  by 
them,  as  well  as  all  foreign  companies  operating 
roads  within  the  State,  to  furnish  separate  coaches 
or  cars  for  travel  or  transportation  of  white  and 
colored  passengers  upon  their  respective  lines  of 
railroad,  and  to  post  in  some  conspicuous  place  upon 
each  coach  appropriate  words  in  plain  letters  indi- 
cating the  race  for  which  it  was  set  apart,  was  an 
infringement  upon  the  exclusive  power  of  Congress 

Construed    to  rcgulatc  interstate  commerce.     The  State  courts 

as  applied 

to  domestic  had  coustrucd  the  act  as  applymg  alone  to  domestic 

commerce.  ^  ff  J       & 

commerce,  but  in  one  case  ^  the  Kentucky  Court  of 
Appeals  had  said:  **  If  it  were  conceded  (which 
it  is  not)  that  the  statute  is  invalid  as  to  interstate 
passengers,  the  proper  construction  to  be  given  it 
would  then  be  that  the  legislature  did  not  so  intend 
it,  but  only  intended  it  to  apply  to  transportation 
within  the  State,  and,  therefore,,  it  should  be  held 
valid  as  to  such  passengers.  It  seems  to  us  that  a 
passenger  taking  passage  in  this  State,  and  railroad 
companies  receiving  passengers  in  this  State,  are 
bound  to  obey  the  law  in  respect  to  this  matter  so 
long  as  they  remain  within  the  jurisdiction  of  the 
State."  In  the  Chesapeake,  etc.,  R.  Co.  v.  Kentucky 
case,  supra,  the  court,  accepting  the  construction  of 
the  State  court  that  the  Act  might  be  limited  by 
construction  to  domestic  commerce,  held  that  it  was 
valid  as  applied  to  the  particular  case,  and  in  reply 
to  the  suggestion  that  the  statute  must  be  construed 
to  regulate  the  travel  or  transportation  on  all  rail- 
I'oads  of  all  white  and  colored  passengers,  while  they 
are  in  the  State,  without  reference  to  where  their 

•  Ohio  Valley  R.  Co.  v.  Lander,  (1898)   104  Ky.  431. 


BEGULATION   OF   COMMERCE  169 

journey    commences    and    ends,    the    court    said:    Chapter 
'*  Granting  that  the  last  sentence  from  the  opinion  . 

of  the  Court  of  Appeals,  above  cited,  would  seem 
to  justify  the  railroad  in  placing  interstate  colored 
passengers  in  separate  coaches,  we  think  that  this 
prosecution  does  not  necessarily  involve  that  ques- 
tion, and  that  the  Act  must  stand,  so  far  as  it  is 
applicable  to  passengers  traveling  between  two 
points  in  the  State. ' '  '^ 

It  will  be  noticed  that  the  cases  holding  that 
statutes  requiring  separate  accommodations  for 
different  races  are  valid  have  involved  statutes 
which  were  expressly  limited  to  domestic  passengers, 
or  which,  if  general  in  terms,  have  been  limited  by 
construction  of  the  State  courts  to  such  persons, 
and  that  the  invalidity  of  such  statutes  as  applied 
to  interstate  passengers  is  a  matter  of  inference. 
It  is  generally  considered,  upon  the  authority  of 
these  cases,  that  such  statutes  are  invalid  in  so  far 
as  they  affect  interstate  traffic,  and  it  must  be  ad- 
mitted that  this  is  at  least  the  proximate  and  natural 
inference. 

In  Smith  v.  Stated  however,  where  the  Tennessee 
Supreme  Court  had  under  consideration  a  statute 

7  See  also  Louisville,  etc.,  R.  Co.  v.  Mississippi,  (1890)  133  U.  S. 
587,  as  to  a  Mississippi  statute,  which,  as  construed  by  the  State 
Supreme  Court,  affected  only  commerce  within  the  State. 

And  in  Plessy  v.  Ferguson,  (1896)  163  U.  S.  537,  it  was  not 
claimed  that  the  separate  coach  law  of  Louisiana  was  an  inter- 
ference with  interstate  commerce,  as  the  transaction  in  that  case 
occurred  on  a  local  line,  with  both  its  termini  within  the  State; 
the  invalidity  of  the  statute  was  urged  upon  the  ground  that  it 
abridged  the  privileges  or  immunities  of  citizens,  deprived  the  plain- 
tiff of  his  property  without  due  process  of  law,  and  also  denied  him 
the  equal  protection  of  the  laws,  but  the  contention  was  overruled, 
and  the  statute  was  held  to  be  no  violation  of  the  Fourteenth  Amend- 
ment. 

8  (1898)   100  Tenn.  494. 


170 


EEGULATION    OF    COMMERCE 


Chapter 


;napi 


which  provided  for  separate  and  equal  accommoda- 
tions, imposing  no  burden  on  either  race  and  giving 
^^fgtecase  to  cach  cqual  accommodations  and  privileges  in 
w?ch*iaw  every  respect,  the  statute  was  held  to  be  a  reason- 
to£-^*^  able  police  regulation  and  applicable  to  both  intra- 
sen|e?s**  statc  and  interstate  travel.  Chief  Justice  Snod- 
grass  wrote  the  opinion  of  the  court,  and,  enumer- 
ating the  subjects  of  police  regulation  as  including 
those  relating  to  the  order,  the  comfort,  and  the 
well-being  of  the  public,  as  well  as  tliose  relating  to 
health,  morals,  and  safety,  said:  ^*  If  it  be  true, 
as  is  sometimes  said,  that  race  prejudices  exist  here 
that  make  it  uncomfortable  or  unsafe  or  promotive 
of  disorder  to  mix  the  races  in  public  conveyances, 
then  both  safety  and  good  order  are  promoted,  as 
well  as  comfort,  in  their  separation.  The  State  is 
to  judge  of  the  necessity  for  such  a  regulation.'' 
This  suggestion  of  the  chief  justice  must  be  under- 
stood as  being  limited  in  his  mind  by  the  considera- 
tion of  the  absence  of  controlling  federal  regulation. 
That  such  a  State  regulation  imposes  a  burden  upon 
the  carrier,  was  supposed  by  the  court  not  to  be  a 
valid  objection,  as  an  incidental  burden  resulting 
from  the  operation  of  a  reasonable  police  regulation 
is  not  a  regulation  of  commerce  within  the  meaning 
of  the  Constitution.^  But  in  Hart  v.  Stated  holding 
a  Maryland  statute  to  be  invalid  as  applied  to  inter- 
state passengers,  the  State  Supreme  Court,  re- 
ferring to  the  Smith  v.  State  case,  supra,  said: 
*  *  The  contrary  conclusion  was  reached  in  an  exceed- 
ingly able  opinion,  but  as  we  understand  the  de- 
cisions of  the  Supreme  Court  on  analogous  ques- 

»  Green  v.  Bridgeton,   (1879)  9  Cent.  L.  J,  206,  10  Fed.  Cas.  No. 
6764. 

1  (1905)   100  Md.  595. 


REGULATION    OF    COMMERCE  171 

lions,  and  the  views  so  strongly  indicated  by  them    Chapter 

on  this  particular  subject,  we  do  not  feel  at  liberty 

to  follow  the  Tennessee  court. ' '  ^ 


Sunday  Laws. 
State  laws  relating  to  the  observance  of  Sunday  suspending 

^  transpor- 

have  been  uniformly  recognized  as  enacted  in  the  {J2°^°^ 
legitimate  exercise  of  the  police  power  of  the  State, 
and  in  line  with  that  doctrine  it  has  been  held,  in 
Hennington  v.  Georgia,^  that  a  statute  declaring 
that  the  transportation  of  freight  shall  be  suspended 
on  the  sabbath  day,  under  certain  conditions  and 
exceptions,  although  in  a  limited  degree  affecting 
commerce,  establishes  a  rule  of  civil  conduct,  and  is 
not  a  needless  intrusion  upon  the  domain  of  federal 
jurisdiction,  nor  strictly  a  regulation  of  interstate 
commerce,  but,  considered  in  its  own  nature,  is  an 
ordinary  police  regulation  designed  to  secure  the 
well-being  and  to  promote  the  general  welfare 
of  the  people  within  the  State  by  which  it  was 
established.'^ 

REGULATING   THE   SALE   OF   TICKETS. 

Several  of  the  States  have  passed  statutes,  with  Prohibiting 
the  ostensible  purpose  of  preventing  frauds  upon  ^^^^J^t^^^,. 
travelers,  prohibiting  the  sale  of  tickets  by  others  ^^^^s^- 
than  specially  authorized  agents.      In  most  cases 
the  statutes  have  been  sustained  as  not  being  regu- 

2  See  also  Anderson  v.  Louisville,  etc.,  R.  Co.,  (1894)  62  Fed. 
Rep.  46;  State  v.  Hicks,  (1892)  44  La.  Ann.  770. 

3  (1896)   163  U.  S.  299. 

♦  See  also  State  v.  Southern  R.  Co.,  (1896)  119  N.  Car.  814; 
Norfolk,  etc.,  R.  Co.  r.  Com.,  (1896)  93  Va.  749;  State  v.  Baltimore, 
etc.,  R.  Co.,   (1884)   24  \V.  Va.  783. 


172 


REGULATION   OF    COMMERCE 


Chapter 


»ptc 
11. 


Regulating 

stop-over 

privileges. 


lations  of  commerce.^  In  New  York,  however,  it 
lias  been  held  that  the  business  of  selling  passage 
tickets,  or  of  ticket  brokerage,  is  a  lawful  and  legiti- 
mate business,  and  that  such  a  statute  is  invalid  as 
a  deprivation  of  the  "  liberty  ''  guaranteed  by  the 
State  constitution.^ 

A  statute  regulating  the  term  within  which 
tickets  may  be  used  and  providing  for  stop-over 
privileges  has  been  said  to  be  inapplicable  to  tickets 
issued  for  interstate  travel/  but  regulations  requir- 
ing railway  companies  to  have  depots  open  a  reason- 
able time  before  the  departure  of  trains  have  been 
sustained.^ 


REGULATING    THE    TIME,    PLACE,    AND    MANNER    OP 
DELIVERY. 

A  State,  in  the  exercise  of  its  police  power,  has 
authority  to  make  reasonable  regulations  concern- 
ing the  place,  manner,  and  time  of  delivery  of  mer- 
chandise moving  in  the  channels  of  interstate  com- 
merce,^ but  an  order  directing  carriers  to  deliver 
all  cars  containing  interstate  freight  beyond  their 
Requiring  right  of  way  to  a  private  siding  imposes  a  direct 
carsbeyond  aud  ouerous  burdcu  on  interstate  commerce.     And 

ngnt  01 

^^^-         if  such  an  order  is  made  in  favor  of  a  particular 

sBurdick  v.  People,  (1894)  149  111.  600;  Stedman  v.  State, 
(1878)  64  Ind.  597;  Fry  v.  State,  (1878)  63  Ind.  552;  State  V, 
Corbett,  <1894)  57  Minn.  345;  State  r.  Thompson,  (Oregon  1906) 
84  Pae.  Eep.  476;  Com.  v.  Keary,  (1901)  198  Pa.  St.  500. 

•  People  V.  City  Prison,  (1898)   157  N.  Y.  116. 

'Lafarier  v.  Grand  Trunk  R.  Co.,  (1892)  84  Me.  286. 

«Hall  V.  South  Carolina  R.  Co.,  (1886)  25  S.  Car.  564. 

»  Statutes  which  enforce  the  duty  of  a  carrier  to  deliver  property 
specified  in  a  bill  of  lading  to  the  legal  holder  thereof  and  which 
protect  the  rights  of  the  holder  are  valid  in  the  absence  of  con- 
gressional legislation  on  the  subject.  Arkansas  Southern  R.  Co.  f?. 
German  Nat.  Bank,  (1906)  77  Ark.  482. 


REGULATION   OF    COMMERCE  173 

person  or  corporation,  it  is  not  only  invalid  as  a  Chapter 
regulation  of  commerce,  but  is  the  assertion  of  a  . .. 
power  concerning  a  subject  covered  by  Acts  of  Con- 
gress which  forbid,  and  provide  remedies  to  pre- 
vent, unjust  discriminations  and  the  subjecting  to 
undue  disadvantages  by  carriers  engaged  in  inter- 
state commerce.^ 

Delivery  of  Goods  on  Tender  of  Freight  Charges, 

The  Interstate  Commerce  Act  of  February  4, 
1887,  as  amended  by  the  Act  of  March  2,  1889,  after 
requiring  common  carriers  to  print  and  post  at 
stations  the  schedules  of  fares  and  rates,  provides : 
**And  when  any  such  common  carrier  shall  have 
established  and  published  its  rates,  fares,  and 
charges  in  compliance  with  the  provisions  of  this 
section,  it  shall  be  unlawful  for  ^uch  common  carrier 
to  charge,  demand,  collect,  or  receive  from  any  per- 
son or  persons  a  greater  or  less  compensation  for 
the  transportation  of  passengers  or  property,  or  for 
any  services  in  connection  therewith,  than  is  speci- 
fied in  such  published  schedule  of  rates,  fares,  and 
charges  as  may  at  the  time  be  in  force. ' '  ^*  A  Texas 
statute  imposed  a  penalty  for  failure  to  deliver 
goods  on  tender  of  the  rate  named  in  a  bill  of  lading.  f^«l*^fedt 
The  State  statute,  as  applicable  to  interstate  ship-  stLte"faws. 

1  McNeill  V.  Southern  R.  Co.,   (1906)  202  U.  S.  543. 

A  State  cannot  compel  a  common  carrier  engaged  in  interstate 
transportation  to  deliver  cars  of  live  stock  moving  in  the  chan- 
nela  of  interstate  commerce  at  a  particular  place  beyond  its  own 
line  different  from  the  general  place  of  delivery  established  by  the 
railway  company,  when  it  is  not  the  means  of  making  a  physical 
connection  that  is  aimed  at,  but  it  is  sought  to  compel  delivery  of 
the  cars  at  a  particular  place  and  in  a  particular  way.  Central 
Stock  Yards  Co.  v.  Louisville,  etc.,  R.  Co.,  (1902)   118  Fed.  Rep.  113. 

1  *  25  Stat,  at  L.  855,  3  Fed.  Stat.  Annot.  828. 


174  REGULATION  OF   COMMERCE 


ci^gter    ments,  was  held  to  bo  valid  by  the  State  Supreme 

. Court,2  but  in  Gulf^  etc.,  R.  Co,  v.  Hefieyy^  Mr. 

Justice  Brewer,  for  the  United  States  Supreme 
Court,  said:  ''  Clearly  the  State  and  the  national 
Acts  relate  to  the  same  subject-matter  and  prescribe 
different  rules.  By  the  State  Act  the  bill  of  lading 
is  made  controlling  as  to  the  rate  collectible,  and  a 
failure  to  comply  with  that  requirement  exposes 
the  delinquent  carrier  to  its  penalties,  while  the 
national  statute  ignores  the  bill  of  lading  and  makes 
the  published  tariff  rate  binding,  and  subjects  the 
offender,  both  carrier  and  agent,  to  severe  penal- 
ties. The  carrier  cannot  obey  one  statute  without 
sometimes  exposing  itself  to  the  penalties  pre- 
scribed by  the  other;  '^  but  further  remarked:  ^'  It 
may  be  conceded  that  were  there  no  congressional 
legislation  in  respect  to  the  matter,  the  State  Act 
could  be  held  applicable  to  interstate  shipments  as 
a  police  regulation." 

GENERAL  POWER  OF  CONGRESS  TO  REGULATE  TRANS- 
PORTATION RATES. 

fomS-  ^^  ^*  ^'  ^*  Joint  Trafjfic  Assoc*  a  bill  was  filed 

troiratw!"'  ^^^  ^^^  purpose  of  obtaining  an  adjudication  that 
an  agreement  entered  into  between  some  thirty-one 
different  railroad  companies  was  illegal  and  enjoin- 
ing its  further  execution.  It  was  held  that  Con- 
gress, in  the  exercise  of  its  right  to  regulate  com- 
merce among  the  several  States,  or  otherwise,  has 
the  power  to  prohibit,  as  in  restraint  of  interstate 
commerce,  a  contract  or  combination  between  com- 

2  Gulf,  etc.,  R.  Co.  V.  Dwyer,  (1890)  76  Tex.  672. 
a  (1895)  158  U.  S.  98. 
4  (1898)  171  U.  S.  506. 


REGULATION   OF    COMMERCE  175 

peting    railroad    corporations    entered    into    and    Chapter 
formed  for  the  purpose  of  establishing  and  main-  ' 

taining  interstate  rates  and  fares  for  the  transporta- 
tion of  freight  and  passengers  on  any  of  the  rail- 
roads, parties  to  the  contract  or  combination,  even 
though  the  rates  and  fares  thus  established  are 
reasonable.  And  as  to  the  power  of  Congress 
directly  or  indirectly  to  control  the  rates  of  inter- 
state carriers,  it  was  held  in  Northern  Securities  Co. 
V,  U.  S.^  that  the  Anti-Trust  Act  of  July  2,  1890, 
embraced  contracts  between  railroads  in  restraint 
of  trade  and  commerce,  and,  affirming  the  power  of 
Congress  to  protect  the  public  against  a  combina- 
tion formed  for  the  purpose  of  obtaining  the  con- 
trol of  rates  for  passengers  and  freight,  the  court, 
speaking  through  Mr.  Justice  Harlan,  said:  **  Will  Power di- 
it  be  said  that  Congress  can  meet  such  emergencies  joj^^^jo^ 
by  prescribing  the  rates  by  which  interstate  carriers 
shall  be  governed  in  the  transportation  of  freight 
and  passengers?  If  Congress  has  the  power  to  fix 
such  rates  —  and  upon  that  question  we  express  no 
opinion  —  it  does  not  choose  to  exercise  its  power 
in  that  way  or  to  that  extent.  It  has,  all  will  agree,, 
a  large  discretion  as  to  the  means  to  be  employed 
in  the  exercise  of  any  power  granted  to  it.  For  the 
present,  it  has  determined  to  go  no  further  than  to 
protect  the  freedom  of  commerce  among  the  States 
and  with  foreign  states  by  declaring  illegal  all  con- 
tracts, combinations,  conspiracies,  or  monopolies  in 
restraint  of  such  commerce,  and  make  it  a  public 
offense  to  violate  the  rule  thus  prescribed.  How 
much  further  it  may  go,  we  do  not  now  say. ' ' 

But  this  may  perhaps  be  considered  as  an  in- 
stance of  judicial  caution,  to  avoid  giving  or  inti- 

6  (1904)  193  U.  S.  197. 


176 


REGULATION   OF   COMMEBCE 


Chapter 
VII. 


Within  con- 
stitutional 
restrictions. 


mating  an  opinion  on  a  question  not  under  con- 
sideration. As  a  State  has  power  to  regulate  rates 
for  domestic  transportation,^  if  the  power  of  Con- 
gress over  the  subject  of  commerce  among  the 
States  is  the  same  as  that  of  the  States  in  respect 
to  purely  local  or  internal  commerce,  as  has  been 
so  often  said,  there  must  be  a  power  in  Congress 
directly  to  control  interstate  rates,  within  due  con- 
stitutional limits."^ 

It  is  undoubted  that  the  power,  if  possessed, 
would  have  to  be  exercised  in  subjection  to  consti- 
tutional restrictions,  and  that  rates  could  not  be 
established  which  would  have  the  effect  of  so  limit- 
ing the  earnings  of  the  companies  as  in  effect  to 
deprive  them  of  their  property  without  due  process 
of  law.  This  consideration,  as  well  as  that  of  the 
extent  of  the  jurisdiction  of  the  courts  to  protect 
the  rights  of  the  carriers,  raises  fundamental  con- 
stitutional questions  not  within  the  scope  of  this 
work. 


Preference 
as  between 
States  and 
not  be- 
tween 
ports. 


Preference  to  Ports  of  One  State  over  Those  of 

Another. 

It  has  been  suggested  at  times  that  the  power  of 
Congress  directly  to  regulate  the  rates  of  interstate 
transportation  could  not  be  exercised,  or  would  be 
difficult  to  exercise,  without  violating  the  limitation 
on  the  power  to  regulate  commerce  contained  in  the 
clause  of  Article  I,  section  9,  of  the  Constitution, 
declaring  that  *  ^  no  preference  shall  be  given  by  any 
regulation  of  commerce  or  revenue  to  the  ports  of 
one  State  over  those  of  another."     Though  such  a 

«  See  infra,  p.  179. 

TSee  Kentucky,  etc.,  Bridge  Co.  v.  Louisville,  etc.,  R.  Co.,  (1889) 
37  Fed.  Rep.  567. 


BEGULATION   OF    COMMERCE  177 

liberal  construction  of  the  clause  may  be  given  as    Chapter 
will  enforce  its  prohibition  in  its  spirit  and  to  its  ' 

entirety,  it  cannot  be  given  a  construction  not  con- 
sistent with  its  terms.  The  clause  does  not  say 
that  no  preference  shall  be  given  to  one  port  over 
£,nother,  but  that  it  shall  not  be  given  ^  *  to  the  ports 
of  one  State  ''  over  ^^  those  of  another."  And  if 
the  singular  be  considered  as  included  in  the  plural, 
it  can  only  be  considered  as  a  prohibition  of  the 
preference  of  one  or  more  ports  "  of  one  State  " 
over  one  or  more  ports  ' '  of  another, ' '  and  not  as  a 
prohibition  of  the  preference  of  one  port  in  a  State 
over  another  port  in  the  same  State.^ 

The  clause  can  only  be  intended  to  prohibit  posi-  incidental 

.  .  .     .  preferenc* 

tive  legislation  lookmg  to  a  direct  privilege  or  pref-  "o^^g^ 
erence.  In  the  exercise  of  the  national  power  of 
eminent  domain  there  is  the  limitation  of  the  Fifth 
Amendment:  ^'  nor  shall  private  property  be  taken 
for  public  use,  without  just  compensation."  Clear 
and  positive,  and  having  a  definite  purpose,  as  is 
this  limitation,  it  has  repeatedly  been  held  to  re- 
quire compensation  to  be  made  only  when  property 
is  actually  taken  or  totally  destroyed  and  not  when 
damage  to  property  results  as  the  incidental  effect 
of  operations  carried  on  by  or  under  the  authority 
of  the  national  government.  Much  less  then  can 
it  be  supposed  that  the  prohibition  with  regard  to 
preferences  to  ports  can  have  any  reference  to  regu- 
lation of  rates  by  Congress  incidentally  having  the 
effect  of  creating  a  preference. 

« This  suggestion  does  not  go  even  so  far  as  the  dictum  of  Mr. 
Justice  Nelson  in  Pennsylvania  v.  Wheeling,  etc.,  Bridge  Co.,  (1855) 
18  How.  (U.  S.)  421,  wherein  he  said  that  "what  is  forbidden  is 
not  discrimination  between  individual  ports  within  the  same  or  dif^ 
ferent  States,  but  discrimination  between  States." 
12 


1  of  one 


178  REGULATION   OP   COMMERCE 

jter  In  two  cases  it  has  been  held  that  the  prohibition 
as  to  preference  of  ports  is  not  against  any  inci- 
dental advantages  that  might  result  from  the  legis- 
lation of  Congress  upon  subjects  connected  with 
commerce  and  confessedly  within  its  power.  In  the 
first  of  these  cases,  Pennsylvania  v.  Wheeling^  etc., 
Bridge  Co.,^  it  was  held  that  an  Act  of  Congress 
a>eciaring  declaring  a  bridge  to  be  a  lawful  structure,  whereby, 
*e*^^"»  as  claimed,  the  interruption  of  the  navigation  of 
steamboats,  and  the  delay  and  expense  arising 
therefrom,  virtually  operated  to  give  a  preference 
to  one  port  over  that  of  another,  was  not  within  the 
meaning  of  the  clause.  A  like  result  was  reached  in 
South  Carolina  v.  Georgia,^  as  to  an  obstruction 
placed  by  authority  of  Congress  at  the  head  of  one 
channel  in  a  navigable  river  between  two  States, 
for  the  purpose  of  improving  another  channel  by 
increasing  the  flow  of  water  through  the  latter,  thus 
increasing  its  depth  and  waterway,  as  also  the 
scouring  effects  of  the  current,  at  the  expense  of  the 
obstructed  channel;  the  court,  through  Mr.  Justice 
Strong,  saying:  ^'  The  prohibition  of  such  a  pref- 
■erence  does  not  extend  to  acts  which  may  directly 
l)enefit  the  ports  of  one  State  and  only  incidentally 
injuriously  affect  those  of  another,  such  as  the  im- 
provement of  rivers  and  harbors,  the  erection  of 
lighthouses,  and  other  facilities  of  commerce. '' 

Having  reference  then  only  to  congressional  leg- 
islation producing  a  direct  and  positive  result  in- 
tended to  be  prohibited,  it  is  difficult  to  conceive  of 
any  regulation  of  rates  for  interstate  transporta- 
tion that  would  be  likely  of  adoption  by  or  under 
the  authority  of  Congress,  that  could  have  more  than 

»  (1855)   18  How.  (U.  S.)  421. 
1  (1876)  93  U.  S.  4. 


KEGULATION    OF    COMMERCE  179 

a  mere  incidental  effect,  if  any,  of  giving  a  prefer-    Chapter 

ence  to  one  port  over  that  of  another,  much  less  to  1__ 

a  port  or  ports  of  one  State  over  a  port  or  ports  of 
another  State. 

POWER  OF  STATES  TO  REGULATE  TRANSPORTATION  RATES. 

While  rates  on  interstate  traffic  cannot  be 
affected  by  State  legislation,^  a  State  has  power  to 
limit  the  amount  of  charges  by  railroad  companies 
for  the  transportation  of  persons  and  property 
within  its  own  jurisdiction,  unless  restrained  by 
some  contract  in  the  charter,  or  unless  what  is  done  subject  to 

-I  '  '  n      1  •        *  constitu- 

is  m  effect  a  deprivation  of  the  carrier's  property  tionaiumi- 
without  due  process  of  law  or  a  denial  of  the  equal 
protection  of  the  law,  or  amounts  to  a  regulation  of 
foreign  or  interstate  commerce.^    And  though  a  rail- 

2  The  action  of  a  State  board  of  railroad  commissioners  in  fixing 
rates  for  continuous  transportation  between  two  points  in  the  State 
is  invalid  when  a  large  part  of  the  route  is  outside  the  State.  Han- 
ley  V.  Kansas  City  Southern  R.  Co.,  (1903)  187  U.  S.  617.  See 
supra,  p.  151. 

A  statute  providing  that  an  express  company  may  charge  $1.50 
for  every  dollar  charged  by  the  railroad  company  whose  lines  it  may 
be  using,  for  transporting  like  articles  by  the  regular  freight  trains 
of  such  railroad  companies,  except  that  for  carrying  packages  weigh- 
ing less  than  five  pounds  the  rate  of  compensation  fehall  not  exceed 
twenty-five  cents  for  any  distance  within  the  State,  and  for  packages 
weighing  more  than  five  and  less  than  fifty  pounds  the  rate  of  com- 
pensation shall  not  exceed  fifty  cents  for  all  distances  within  the 
State,  is  invalid  as  to  a  shipment  by  express  from  a  point  without 
the  State  to  a  point  within.  Southern  Express  Co.  v.  Goldberg, 
(1903)  101  Va.  619. 

A  State  cannot  interfere  with  "  proportional  tariffs  "  or  collection 
of  freight  rates  which  apply  wholly  to  interstate  business  and  which 
have  been  approved  of  and  acquiesced  in  by  the  United  States  Com- 
merce Commission  and  the  different  companies  on  whose  roads  they 
are  effective.  J.  Rosenbaum  Grain  Co.  v.  Chicago,  etc.,  R.  Co.,  ( 1903 ) 
130  Fed.  Rep.  46. 

3  Georgia  R.,  etc.,  Co.  v.  Smith,  (1888)  128  U.  S.  174;  Railroad 
Commission  Cases,  (1886)   116  U.  S.  307. 


180  KEGULATION   OF    COMMERCE 

Chapter  poad  Corporation  is  organized  under  an  Act  of  Con- 
'  gress,  as  to  l)usiness  done  wholly  within  the  State 
it  is  subject  to  the  control  of  the  State  in  the  matter 
of  domestic  rates,  when  there  is  nothing  in  the  act 
creating  the  company  which  indicates  an  intent  on 
the  part  of  Congress  to  remove  the  corporation  in 
all  its  operations  from  the  control  of  the  State,  and 
there  is  nothing  in  the  enforcement  by  the  State  of 
reasonable  rates  for  transportation  wholly  within 
the  State  which  will  disable  the  corporation  from 
discharging  all  the  duties  and  exercising  all  the 
powers  conferred  by  Congress.* 

Regulating  Domestic  Part  of  Interstate  Bate. 
Exclusive  If  the  transportation  be  partly  within  and  partly 

power  in  ^  r  j  r-  .> 

Congress,  without  a  State,  the  State  cannot  regulate  that  part 
of  the  transportation  that  is  within.  The  rate  can- 
not be  split  up  according  to  the  jurisdiction  of  the 
State  or  Territory  nor  can  it  be  fixed  by  joint  action 
of  the  States.  There  can  be  but  one  rate,  fixed  by 
one  authority,  and,  if  the  transportation  is  from  one 
State  into  another,  the  authority  is  in  Congress.^ 
A  statute  of  Wisconsin  passed  in  1874  classified 

Chief  Justice  Waite  said  that  railroad  companies  are  incor- 
porated as  carriers  for  hire,  and  given  extraordinary  powers,  in 
order  that  they  may  the  better  serve  the  public  in  that  capacity, 
and  that  they  are,  therefore,  engaged  in  a  public  employment  affect- 
ing the  public  interest,  and  are  subject  to  legislative  control  as  to 
their  rates  of  fare  and  freight,  unless  protected  by  their  charters. 
Chicago,  etc.,  R.  Co.  v.  Iowa,  (1876)  94  U.  S.  155. 

The  power  of  the  State  cannot  be  denied  because  it  may  prescribe 
a  different  classification  from  that  established  by  the  companies,  nor 
because  it  may  be  advisable  for  the  companies  to  rearrange  their 
interstate  rates  for  their  own  convenience.  Ames  v.  Union  Pac.  R. 
Co.,  (1894)  64  Fed.  Rep.  165. 

*  Reagan  v.  Mercantile  Trust  Co.,  (1804)   154  U.  S.  413. 

8Hanley  v.  Kansas  City  Southern  R.  Co.,  (1903)   187  U.  S.  617. 


REGULATION    OF   COMMERCE  181 

railroads  in  the  State,  fixed  the  limit  of  fare  for  the    ChaDter 

transportation  of  any  person,  classified  freights  and  1_ 

the  maximum  rates  therefor,  and  prescribed  cer-  Eariy  state 

'  -^  statutes 

tain  penalties  and  forfeitures  for  receiving  any  sustained, 
greater  rate  or  compensation  for  carrying  freight 
or  passengers  than  the  act  provided.  The  statute 
further  provided  that  ^'  nothing  contained  in  this 
act  shall  be  taken  as  in  any  manner  abridging  or 
controlling  the  rates  for  freight  charged  by  any  rail- 
road company  in  this  State  for  carrying  freight 
which  comes  from  beyond  the  boundaries  of  the 
State,  and  to  be  carried  across  or  through  the  State ; 
but  said  railroad  companies  shall  possess  the  same 
power  and  right  to  charge  such  rates  for  carrying 
such  freight  as  they  possessed  before  the  passage 
of  this  act.''  As  providing  for  a  maximum  charge 
to  be  made  for  fare  and  freight  upon  the  transporta- 
tion of  persons  and  property  carried  within  the  Ston^rom 
State,  or  taken  up  outside  the  State  and  brought  fhesuti. 
within  it,  or  taken  up  inside  and  carried  without,  the 
statute,  in  Peik  v.  Chicago,  etc.,  R.  Co.,^  was  held 
not  to  be  a  regulation  of  commerce  between  the 
States,  the  court  saying:  *'  The  law  is  confined  to 
State  commerce,  or  such  interstate  commerce  as 
directly  affects  the  people  of  Wisconsin.  Until  Con- 
gress acts  in  reference  to  the  relations  of  this  com- 
pany to  interstate  commerce,  it  is  certainly  within 
the  power  of  Wisconsin  to  regulate  its  fares,  etc., 
so  far  as  they  are  of  domestic  concern.  With 
the  people  of  Wisconsin  this  company  has  domestic 
relations.  Incidentally  these  may  reach  beyond  the 
State.  But  certainly,  until  Congress  undertakes 
to  legislate  for  those  who  are  without  the  State, 

6  (1876)   94  U.  S.  164.     See  also  Chicago,  etc.,  R.  Co.  v.  Iowa, 
(1876)  94  U.  S.  155. 


182  REGULATION    OF    COMMERCE 

Chapter  Wisconsin  may  provide  for  those  within,  even 
'      though  it  may  indirectly  affect  those  without." 

over?u?ed"  ^^^  ^^  Wabask,  ctc,  R.  Co.  V.  Illinois,^  a  differ- 
ent conclusion  was  reached.  An  Illinois  statute 
provided  that  if  any  railroad  corporation  should 
charge,  collect,  or  receive  for  the  transportation 
of  any  passenger  or  freight  of  any  description  upon 
its  railroad,  for  any  distance  within  the  State,  the 
same  or  a  greater  amount  of  toll  or  compensation 
than  was  at  the  same  time  charged,  collected,  or 
received  for  the  transportation  in  the  same  direc- 
tion of  any  passenger  or  like  quantity  of  freight  of 
the  same  class  over  a  greater  distance  of  the  same 
road,  all  such  discriminating  rates,  charges,  collec- 
tions, or  receipts,  whether  made  directly,  or  by 
means  of  rebate,  drawback,  or  other  shift  or  evasion, 
should  be  deemed  and  taken  against  any  such  rail- 
road corporation  as  prima  facie  evidence  of  unjust 
discrimination  prohibited  by  the  provisions  of  the 
statute.  The  State  Supreme  Court  ^  interpreted 
the  statute  to  include  cases  of  transportation  partly 
within  and  partly  without  the  State,  and  effectual 
as  to  so  much  of  the  transportation  as  was  within 
the  limits  of  the  State,  and,  following  the  authority 
of  Chicago,  etc.,  R.  Co.  v.  lowa^  and  Peih  v.  Chi- 
cago, etc.,  R.  Co.}  held  the  statute  as  so  construed 
to  be  valid.  But  on  a  writ  of  error,  the  court  in 
Wabash,  etc.,  R.  Co.  v.  Illinois,  supra,  virtually 
overruled  the  Chicago,  etc.,  R.  Co.  v.  Iowa  and  Peik 
V.  Chicago,  etc.,  R.  Co.  cases,  supra,  and  said :    '  *  It 

1  (1886)    118  U.  S.  557.     See  Burlington,  etc.,  R.  Co.  v.  Dey, 
(1891)   82  Iowa  312. 

«  People  V.  Wabash,  etc.,  R.  Co.,  (1882)  104  111.  476. 
9  (1876)  94  U.  S.  155. 
1  (1876)  94  U.  S.  164. 


REGULATION   OF    COMMERCE  183 

might  admit  of  question  whether  the   statute   of    Chapter 

Illinois,  now  under  consideration,  was  designed  by  ^ 

its  framers  to  affect  any  other  class  of  transporta-  Accepgy 


tion  than  that  which  begins  and  ends  within  the  j;°°|j^s 
limits  of  the  State.  The  Supreme  Court  of  Illinois  ^*^^ 
having  in  this  case  given  an  interpretation  which 
makes  it  apply  to  what  we  understand  to  be  com- 
merce among  the  States,  although  the  contract  was 
made  within  the  State  of  Illinois,  and  a  part  of  its 
performance  was  within  the  same  State,  we  are 
bound,  in  this  court,  to  accept  that  construction;  '* 
and  said  further:  ^'  Of  the  justice  or  propriety  of 
the  principle  which  lies  at  the  foundation  of  the 
Illinois  statute  it  is  not  the  province  of  this  court 
to  speak.  As  restricted  to  a  transportation  which 
begins  and  ends  within  the  limits  of  the  State  it  may. 
be  very  just  and  equitable,  and  it  certainly  is  the 
province  of  the  State  legislature  to  determine  that 
question.  But  when  it  is  attempted  to  apply  to 
transportation  through  an  entire  series  of  States 
a  principle  of  this  kind,  and  each  one  of  the  States^ 
shall  attempt  to  establish  its  own  rates  of  trans- 
portation, its  own  methods  to  prevent  discrimina- 
tion in  rates,  or  to  permit  it,  the  deleterious  in- 
fluence upon  the  freedom  of  commerce  among  the 
States  and  upon  the  transit  of  goods  through  those 
States  cannot  be  overestimated. ' '  ^ 

2  Before  Congress  legislated  on  the  subject  of  discrimination  itt 
freight  charges  by  the  Interstate  Commerce  Act  of  1887,  the  right  of 
a  carrier  to  make  discriminations  was  recognized  at  common  law, 
and  no  State  statute  could  affect  such  discriminations  in  respect  to- 
interstate  shipments.  Gatton  v.  Chicago,  etc.,  R.  Co.,  (1895)  95 
Iowa  112. 

A  statute  enacted  to  prevent  unfair  or  unjust  discriminations 
by  express  companies,  and  to  this  end  prohibiting  the  granting  by 
such  companies  to  any  one  carrier,  class,  or  combination  of  carriers^ 
any  terms,  credit,  privileges,  advantages,  usages,  accommodations,. 


Chapter 


;napi 
VII 


184  BBGULATION   OF   COMMERCE 


Joint  Through  Rates. 


b*lSe°"  ^  State  statute  creating  a  railroad  and  ware- 
co^^mis-  house  commission,  and  defining  its  duties,  is  valid 
in  so  far  as  it  authorizes  the  commission  to  establish 
joint  through  rates  or  tariffs  over  the  lines  of  inde- 
pendent connecting  railroads  within  the  State,  and 
arbitrarily  to  apportion  and  divide  joint  earnings.^ 
Right  to  To  the  suggestion  that  the  State  may  interfere 

fix  tariffs  , 

andappor-    as  bctween  the  railways  and  their  customers,  the 

tion  among  *'  ^ 

Sur^Idsf^  shippers  of  freight,  but  cannot  do  so  as  between 
the  railways  themselves,  by  fixing  joint  tariffs  and 
apportioning  such  tariffs  among  the  several  rail- 
ways interested  in  the  transportation,  the  court, 
through  Mr.  Justice  Brown,  said:  '^  The  prac- 
tical result  of  that  argument  is  this,  that  if  there 
were  within  a  certain  State  five  connecting  roads 
of  one  hundred  miles  each  in  length,  which  among 
themselves  had  established  a  joint  tariff  for  the 
whole  fiYe  hundred  miles,  the  State  would  be  power- 
less to  interfere  with  such  tariff,  though  its  right 
to  do  so  would  be  unquestioned  if  the  whole  five 
hundred  miles  were  owned  and  operated  by  a  single 
company.      To  state  such  a  proposition  is  prac- 

or  facilities  in  the  receipt,  transmission,  or  delivery  of  express 
matter  which  they  did  not  grant  to  all  others,  was  held  to  be  valid, 
but  the  case  itself  was  one  of  transportation  between  two  points 
within  the  State.    Adams  Express  Co.  v.  State,  (1903)  161  Ind.  328. 

But,  it  seems,  as  a  railroad  company  has  a  right  to  make  a  con- 
tract with  respect  to  interstate  commerce,  and  to  bind  itself  to  cer- 
tain rates,  that  a  contract  with  a  city  by  which,  as  a  condition  to 
occupy  its  streets,  a  company  binds  itself  to  impose  no  rates  which 
are  unequally  discriminating  against  the  city,  may  be  enforced.  Iron 
Mountain  R.  Co.  v.  Memphis,  (1899)  96  Fed.  Rep.  113. 

When  a  statute  is  construed  to  be  limited  to  domestic  commerce,  it 
is  valid.    Railroad  Com'r  v.  Wabash  R.  Co.,  (1900)  123  Mich.  669. 

•  Minneapolis,  etc.,  R.  Co.  v.  Minnesota,  (1902)  186  U.  6.  257. 


REGULATION   OF    COMMERCE  185 

tically  to  answer  it.     Granting  that  a  State  has  no    Chapter 
right  to  interfere  with  the  internal  economy  of  a  ' 

railroad  farther  than  to  secure  the  safety  and  com- 
fort of  passengers,  as,  for  example,  to  fix  the  wages 
of  employees  or  control  its  contracts  for  construc- 
tion, or  the  purchase  of  supplies,  it  has  a  clear 
right  to  pass  upon  the  reasonableness  of  contracts 
in  which  the  public  is  interested,  whether  such  con- 
tracts be  made  directly  with  the  patrons  of  the 
road,  or  for  a  joint  action  in  the  transportation  of 
persons  or  property  in  which  the  public  is  indirectly 
concerned. ' ' 

Hates  on  Long  and  Short  Hauls, 

In  Louisville,  etc.,  R.  Co.  v.  Kentucky,^  the  va-  statute 
lidity  of  a  Kentucky  statute  declaring  that  it  should  ^^^^^^ 
be  unlawful  for  any  person  or  corporation  owning  gtS"*^' 
or  operating  a  railroad  in  the  State  to  charge  or 
receive  any  greater  compensation  in  the  aggregate 
for  the  transportation  of  passengers,  or  of  property 
of  like  kind,  under  substantially  similar  circum- 
stances and  conditions,  for  a  shorter  than  for  a 
longer  distance,  over  the  same  line,  in  the  same 
direction,  the  shorter  being  included  in  the  longer 
distance,  was  considered.  The  statute  was  based 
upon  a  constitutional  provision  of  similar  tenor. 
As  the  particular  case  was  one  involving  only 
transportation  from  one  point  in  the  State  to  an- 
other by  a  corporation  of  that  State,  and  the  statute 
did  not  in  terms  embrace  a  case  of  interstate  com- 
merce, it  was  held  to  be  enforceable. 

But  in  another  case  the  State  Supreme  Court 
construed  the  State  constitutional  provision  as  not 

*  (1902)  183  U.  S.  503. 


186  REGULATION   OF   COMMERCE 

Chapter    confined  to  a  case  where  the  long  and  short  hauls 

VII 

'      were  both  within  the  State  of  Kentucky,  and  held 
Interstate     that  it  cxtcnded  to  and  embraced  a  long  haul  from 

long  haul  ^ 

tic'lh!)°rt "'  ^  place  outside  of  to  one  withm  the  State,  and  a 
haul.  shorter  haul  between  points  on  the  same  line  and  in 

the  same  direction,  both  of  which  were  within  the 
State.  As  so  construed,  the  regulation  was  declared 
invalid  in  Louisville,  etc.,  R.  Co.  v.  Eubank,^  the 
court  saying  that  the  vice  of  such  a  provision,  thus 
applied,  lies  in  the  regulation  of  the  rates  between 
points  wholly  within  the  State,  by  the  rates  which 
obtain  between  points  outside  of  and  points  within 
the  State.  The  court  further  said,  Mr.  Justice 
Peckham  writing  the  opinion,  that  ^'  the  fact  which 
vitiates  the  provision  is  that  it  compels  the  carrier 
to  regulate,  adjust,  or  fix  his  interstate  rates  with 
some  reference  at  least  to  his  rates  within  the 
State,  thus  enabling  the  State  by  constitutional  pro- 
vision or  by  legislation  to  directly  affect,  and  in  that 
way  to  regulate,  to  some  extent  the  interstate  com- 
merce of  the  carrier,  which  power  of  regulation  the 
Constitution  of  the  United  States  gives  to  the  Fed- 
eral Congress." 

Requiring  Rates  to  Be  Fixed  Annually  and  Posted. 

In  Chicago,  etc,  R.  Co.  v.  Fuller,^  the  question 
was  as  to  the  validity  of  a  statute  of  Iowa  requiring 
that  each  railroad  company  should,  in  the  month  of 
September,  annually,  fix  its  rates  for  the  transporta- 
tion of  passengers  and  of  freight  of  different  kinds ; 
that  it  should  put  up  a  printed  copy  of  such  rates 
at  all  its  stations  and  depots,  and  cause  a  copy  to  re- 

6  (1902)  184  U.  S.  27. 

6  (1873)   17  Wall.  (U.  S.)  5G0. 


REGULATION    OF    COMMERCE  187 

main  posted  during  the  year;  and  that  a  failure  to    Chapter 

fulfil  these  requirements,  or  the  charging  of  a  higher 

rate  than  was  posted,  should  subject  the  offending 
company  to  the  payment  of  the  penalty  prescribed. 
Mr.  Justice  Swayne,  speaking  for  the  court,  said: 
*^  In  all  other  respects  there  is  no  interference. 
No  other  constraint  is  imposed.  Except  in  these 
particulars  the  company  may  exercise  all  its  facul- 
ties as  it  shall  deem  proper.  No  discrimination  is 
made  between  local  and  interstate  freights,  and  no 
attempt  is  made  to  control  the  rates  that  may  be 
charged.  It  is  only  required  that  the  rates  shall 
be  fixed,  made  public,  and  honestly  adhered  to.  In 
this  there  is  nothing  unreasonable  or  onerous.  The 
public  welfare  is  promoted  without  wrong  or  injury 
to  the  company.  The  statute  was  doubtless  deemed 
to  be  called  for  by  the  interests  of  the  community  to 
be  affected  by  it,  and  it  rests  upon  a  solid  founda- 
tion of  reason  and  justice.  It  is  not,  in  the  sense  of 
the  Constitution,  in  any  wise  a  regulation  of  com- 
merce.'^ And  even,  added  the  court,  if  the  State 
statute  is  a  regulation,  it  is  local  in  its  character, 
and  may  be  sustained  in  the  absence  of  Congres- 
sional legislation.''^ 

7  The  Interstate  Commerce  Act  of  1887  requires  printed  schedules 
of  rates  to  be  posted,  and  advances  and  reductions  to  be  made  only 
after  public  notice.  See  Act  of  February  4,  1887,  c.  104,  §  6,  as 
amended  by  the  Act  of  March  2,  1889,  c.  382,  §  1,  3  Fed.  Stat.  Annot. 
827. 


CHAPTEE  Vm. 
TELEGEAPH    AND    TELEPHONE    COMPANIES. 

CONTBOLLING  POWEE   OF   CONGRESS. 


VIII. 


C 


Chapter    /^COMMUNICATION  by  telegraph  is  commerce, 
and  telegraph  lines  when  extending  through 


Telegraph  different   States    are   instruments    of   com- 

strumentof  merco,  aud  are  subject  to  the  regulating  power  of 
Congress,  free  from  the  control  of  State  regulations 
except  such  as  are  strictly  of  a  police  character.* 
Chief  Justice  Waite,  speaking  for  the  court  in 
Western  Union  Tel.  Co,  v,  Texas ^^  said:  **A  tele- 
graph company  occupies  the  same  relation  to  com- 
merce as  a  carrier  of  messages,  that  a  railroad 
company  does  as  a  carrier  of  goods.  Both  com- 
panies are  instruments  of  commerce,  and  their 
business  is  commerce  itself.  They  do  their  trans- 
portation in  different  ways,  and  their  liabilities  are 
in  some  respects  different,  but  they  are  both  indis- 
pensable to  those  engaged  to  any  considerable  ex- 
tent in  commercial  pursuits.'' 

1  Western  Union  Tel.  Co.  v.  James,  (1896)  162  U.  S.  650;  West- 
ern Union  Tel.  Co.  v.  Alabama  State  Board  of  Assessment,  (1889) 
132  U.  S.  473;  Leloup  v.  Mobile,  (1888)  127  U.  S.  640;  Western 
Union  Tel.  Co.  v.  Pendleton,  (1887)  122  U.  S.  347;  Pensacola  Tel. 
Co.  V.  Western  Union  Tel.  Co.,  (1877)  96  U.  S.  1. 

Messages  between  points  in  the  same  State,  transmitted  over  the 
wires  of  the  same  company  and  in  part  over  the  territory  of  another 
State,  do  not  constitute  interstate  commerce.  Railroad  Com'rs  v. 
Western  Union  Tel.  Co.,  (1893)  113  N.  Car.  213;  Western  Union  Tel. 
Co.  V.  Reynolds,  (1902)  100  Va.  459. 

2  (1881)  106  U.  S.  460. 


REGULATION    OF    COMMERCE 


189 


In  a  few  State  cases  ^  it  has  been  held  that  the 
telephone  is  an  instrument  of  commerce.  And  from 
the  case  of  Richmond  v.  Southern  Bell  Telephone, 
etc.,  Co.,'^  it  may  be  inferred  that  the  interstate 
business  of  a  telephone  company  may  be  sub- 
jected to  federal  regulation,  but  a  reading  of 
the  case  leaves  it  very  uncertain  what  degree 
of  control  Congress  may  exercise.  In  that  case 
the  question  was  presented  whether  a  telephone 
company  is  entitled  to  claim  the  benefit  of  the  pro- 
visions of  the  Act  of  Congress  of  July  24,  1866, 
referred  to  below,**  that  is,  whether  the  words 
*^  telegraph  company  "  included  a  telephone  com- 
pany. In  holding  that  the  privileges  of  the  statute 
cannot  be  extended  by  implication  only,  the  court, 
Mr.  Justice  Harlan  writing  the  opinion,  said :  *  ^  If 
the  act  be  construed  as  embracing  telephone  com- 
panies, numerous  questions  are  readily  suggested. 
May  a  telephone  company,  of  right,  and  without 
reference  to  the  will  of  the  States,  construct  and 
maintain  its  wires  in  every  city  in  the  territory 
in  which  it  does  business?  May  the  constituted 
authorities  of  a  city  permit  the  occupancy  only  of 
certain  streets  for  the  business  of  the  company? 
May  the  company,  of  right,  fill  every  street  and 
aljey  in  every  city  or  town  in  the  country  with 


Chapter 
VIII. 


Telephone 
as  an  in- 
strument of 
commerce. 


Judicial 

suggestions 
as  to  efEect 
of  federal 
control  of 
telephone 
companies. 


3  See  Muskogee  Nat.  Telephone  Co.  v.  Hall,  ( 1901 )  4  Indian  Ter. 
18;  Matter  of  Pennsylvania  Telephone  Co.,   (1891)   48  N.  J.  Eq.  91. 

Prohibiting  discrimination  between  patrons  and  regulating  the 
rental  for  the  use  of  telephones  is  valid,  as  to  a  company  engaged 
in  interstate  business.  Central  Union  Telephone  Co.  v.  State,  (1888) 
118  Ind.  194. 

*  (1899)  174  U.  S.  761. 

In  Muskogee  Nat.  Telephone  Co.  v.  Hall,  (1902)  118  Fed.  Rep. 
382,  it  was  held  a  State  could  not  grant  the  exclusive  right  to 
operate  telephone  lines  within  its  borders. 

*  *  See  infra,  p.  190. 


190 


EEGULATION   OF    COMMERCE 


Chapter 
VIII. 


Telegraph 
companies 
authorized 
to  construct 
lines  over 
post  roads, 
etc. 


poles  on  wMch  its  wires  are  strung,  or  may  the 
local  authorities  forbid  the  erection  of  any  poles  at 
all?  May  a  company  run  wires  into  every  house 
in  a  city,  as  the  owner  or  occupant  may  desire, 
or  may  the  local  authorities  limit  the  number  of 
wires  that  may  be  constructed  and  used  within  its 
limits?  These  and  other  questions  that  will  occur 
to  every  one  indicate  the  confusion  that  may  arise 
if  the  Act  of  Congress,  relating  only  to  telegraph 
companies,  be  so  construed  as  to  subject  to  national 
control  the  use  and  occupancy  of  the  streets  of 
cities  and  towns  by  telephone  companies,  subject 
only  to  the  reasonable  exercise  of  the  police  powers 
of  the  State.  ...  If  Congress  desires  to  extend 
the  provisions  of  the  Act  of  1866  to  companies  en- 
gaged in  the  business  of  electrically  transmitting 
articulate  speech  —  that  is,  to  companies  popularly 
known  as  telephone  companies,  and  never  otherwise 
designated  in  common  speech  —  let  it  do  so  in  plain 
words.  It  will  be  time  enough  when  such  legisla- 
tion is  enacted  to  consider  any  questions  of  consti- 
tutional law  that  may  be  suggested  by  it. ' ' 

By  the  Act  of  Congress  of  July  24,  1866,^  tele- 
graph companies  were  authorized  under  certain 
conditions  to  construct,  maintain,  and  operate  lines 
of  telegraph  over  the  public  domain  and  along  any 
military  or  post  roads  of  the  United  States.  In 
Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.^  it 
was  held  that  the  statute  was  constitutional  so  far 
as  it  declared  the  erection  of  telegraph  wires  to 
be,  as  against  State  interference,  free  to  all  who 


B  Act  of  July  24,  1866,  c.  230,  brought  forward  into  the  Revised 
Statutes  of  the  United  States,  §§  5263  et  seq.,  7  Fed.  Stat.  Annot. 
205. 

«  (1877)  96  U.  S.  1. 


REGULATION    OF    COMMERCE 


191 


accepted  its  terms  and  conditions,  and  that  a  tele- 
graph company  of  one  State  accepting  them  could 
not  be  excluded  by  another  State  from  prose- 
cuting its  business  within  her  jurisdiction 
case  a  State  statute  had  conferred  upon  a  single 
corporation  the  exclusive  right  of  transmitting  in- 
telligence by  telegraph  from  a  certain  portion  of 
its  territory,  and  it  was  held  to  be  an  attempt  to 
regulate  commerce,  and  to  conflict  with  the  above 
Act  of  Congress.' 


Chapter 
VIII. 


Grant  by 
State  of 


In  this  -^JJ2. 


POWER  OF  STATES  TO  ADOPT  REGULATIONS. 

The  states  may  adopt  regulations  affecting  tele- 
graph companies,  when  such  regulations  are  on  mat- 
ters of  local  concern,  and  unless  their  operation  im- 
pairs the  ability  of  the  companies  to  attend  to  their 
interstate  and  foreign  business.^  Under  the  police 
Ijower,  a  State  may  make  all  necessary  provisions 
with  respect  to  the  buildings,  poles,  and  wires  of 
telegraph  companies  in  its  jurisdiction  which  the 
comfort  and  convenience  of  the  community  may 

1  See  also  Western  Union  Tel.  Co.  v.  Pennsylvania  R.  Co.,  (1904) 
195  U.  S.  540;  Leloup  v.  Mobile,  (1888)  127  U.  S.  640;  Western 
Union  Tel.  Co.  v.  Pendleton,  (1887)  122  U.  S.  347;  Western  Union 
Tel.  Co.  V.  Atlantic,  etc.,  Tel.  Co.,  (1869)  5  Nev.  102. 

8  A  State  may  require  offices  to  be  established  at  places  con- 
venient to  routes  to  be  designated  by  the  State  Railroad  Commission. 
Western  Union  Tel.  Co.  v.  Mississippi  R.  Commission,  (1896)  74 
Miss.  80. 

A  statute  declaring  a  stipulation  in  a  contract  for  the  trans- 
mission of  a  message  to  be  invalid  which  required  notice  of  a  claim 
for  damages  against  a  telegraph  company  to  be  given  within  sixty 
days  after  breach  of  the  contract,  is  void,  so  far  as  it  applies  to 
messages  sent  into,  and  received  from,  another  State.  Western 
Union  Tel.  Co.  v.  Burgess,  (Tex.  Civ.  App.  1897)  43  S.  W.  Rep.  1033. 

Gambling  operations  by  means  of  telegraphic  communications 
may  be  prohibited.  State  v.  Harbourne,  (1898)  70  Conn.  484; 
Louisville  v.  WehmhoflF,  (1903)   116  Ky.  845. 


Matters  of 
local  con- 
cern. 


192  BEGULATION   OF   COMMERCE 

Chapter    require,^  and  a  State  or  the  local  authority  may  re- 

quire  the  removal  of  poles  and  wires  from  a  street 

to  a  less  frequented  alley,^  and  may  require  electric 
wires  and  cables  to  be  placed  under  the  surface  of 
the  streets.^ 

Regulating  Transmission  and  Delivery  of  Messages. 

^rom^'t"^  A  State  statute  which  requires  telegraph  com- 

tftShe  panics  diligently  to  transmit  and  deliver  messages 
^^'^'  is  a  valid  exercise  of  power  in  relation  to  mes- 
sages by  telegraph  from  points  outside  and  directed 
to  some  point  within  the  State.  Such  a  statute 
**  imposes  a  penalty/'  said  Mr.  Justice  Peckham, 
in  Western  Union  Tel.  Co.  v.  James,^  ''  for  the  pur- 
pose of  enforcing  this  general  duty  of  the  company. 
The  direction  that  the  delivery  of  the  message  shall 
be  made  with  impartiality  and  in  good  faith  and 
with  due  diligence  is  not  an  addition  to  the  duty 
which  it  would  owe  in  the  absence  of  such  a  stat- 
Reiruiating   utc. "  ^      But  a  statuto  requiring  telegrams  to  be 

delivery  in        -,->'-»•,  t.  o  o 

sS?es.  delivered  by  messenger  to  the  persons  to  whom 
they  are  addressed,  if  they  reside  within  one  mile 
of  the  telegraph  station  or  within  the  city  or  town 
within  which  such  station  is,  and  which  applies  when 
the  delivery  is  to  be  made  in  another  State,  is  not 
within  the  power  of  a  State,  as  conflict  and  con- 
fusion would  follow  the  attempted  exercise  by  sev- 

«  See  infra,  p.  301. 

1  Michigan  Telephone  Co.  v.  Charlotte,   (1899)   93  Fed.  Rep.  11. 

2  Western  Union  Tel.  Co.  v.  New  York,  (1889)  38  Fed.  Rep.  552. 

3  (1896)  162  U.  S.  650,  affirming  (1892)  90  Ga.  254.  See  also 
Western  Union  Tel.  Co.  v.  Lark,  (1895)  95  Ga.  806. 

*  A  statute  imposing  a  penalty  for  delay  may  be  enforced  in  the 
ease  of  a  message  between  points  in  the  same  State  passing  en  route 
out  of  the  State.  Western  Union  Tel.  Co.  v.  Hughes,  (1905)  104 
Va.  240. 


transmis- 
sion. 


REGULATION    OF   COMMERCE  193 

eral  States  of  such  a  power ;  ^  though  State  courts    Chapter 

have  held  statutes  to  be  valid  which  impose  penal-  L. 

ties  for  failure  to  transmit  messages  intended  for  ^^^"if'lJ.'Jf 
other   States  when  the   acts   of   negligence   occur  staS"'^*" 
within  the  State,^  as  where  there  is  a  failure  to 
transmit  the  message  from  the  point  of  originJ 

A  State  cannot  provide  that  messages  for  and  Re^guiatinff 
from  officers  of  justice  shall  take  precedence,  or 
that  arrangements  may  be  made  with  publishers  of 
newspapers  for  the  transmission  of  intelligence  of 
general  and  public  interest  out  of  its  order,  but  that 
all  other  messages  shall  be  transmitted  in  the  order 
in  which  they  are  received.  An  attempt,  by  penal 
statutes,  to  enforce  delivery  of  such  messages  in 
other  States,  in  conformity  with  such  a  rule,  could 
hardly  fail  to  lead  to  confusion  with  their  statutes.* 

5  Western  Union  Tel.  Co.  v.  Pendleton,  (1887)  122  U.  S.  347. 

6  Western  Union  Tel.  Co.  v.  Howell,    (1894)    95  Ga.   194.      See 
Western  Union  Tel.  Co.  v.  Meredith,  (1883)  95  Ind.  93. 

7  Postal  Tel.  Cable  Co.  v.  Umstadter,  ( 1905 )   103  Va.  742. 
«  Western  Union  Tel.  Co.  v.  Pendleton,  (1887)  122  U.  S.  347. 

13 


CHAPTER  IX. 

NAVIGATION  AND  NAVIGABLE  WATEES. 

WHAT   AKE   NAVIGABLE    WATERS. 

Chapter    T^HE  common-law  test  of  navigability,  as  held  by 
^-         X       the  English  admiralty  courts,  that  waters  are 
3Not  limited  navigable  which  are  subject  to  the  ebb  and 

«ate«.  flow  of  the  tide,  has  long  since  been  discarded  in  this 
country  in  favor  of  the  more  liberal '  principles  of 
the  civil  law,  equally  with  the  common  law  embraced 
by  the  Constitution,  as  being  more  suited  to  the  con- 
ditions of  this  country,  with  its  vast  extent  and  its 
inland  seas,  bays,  and  rivers.^ 
whcunavi-  Whcu  CougTcss  legislates  respecting  the  *^  navi- 
£t-^'°  gable  waters  of  the  United  States,"  it  is  now  under- 
stood that  such  streams  are  meant  as  are  navigable 
in  fact,  and  which  by  themselves  or  their  connection 
with  other  waters  or  means  of  transportation  form 
a  continuous  channel  for  commerce  of  a  substantial 
and  permanent  character  among  the  States  or 
with  foreign  countries.  They  are  navigable  in  fact 
when  they  are  used,  or  are  susceptible  of  being 
used,  in  their  ordinary  condition,  as  highways  of 
commerce,  over  which  trade  and  travel  are  or  may 
be  conducted  in  the  customary  modes  of  trade  and 
travel  by  water.^      But  it  cannot  be  supposed,  in 

lEscanaba,  etc.,  Transp.  Co.  v.  Chicago,  (1882)  107  U.  S.  678; 
Nelson  v.  Leland,  (1859)  22  How.  (U.  S.)  48. 

2  Miller  v.  New  York,  (1883)  109  U.  S.  385;  Escanaba,  etc., 
Transp.  Co.  v.  Chicago,    (1882)    107  U.  S.  678;   The  Daniel  Ball, 


commerce. 


KEGULATION    OF    COMMERCE  195 

the  absence  of  express  provision,  to  be  the  intention    Chapter 
of  Congress  to  interfere  with  or  prevent  the  exer-  ' 

cise  by  a  State  of  its  power  to  reclaim  swamp  and 
overflowed  lands  by  regulating  and  controlling  the 
current  of  small  streams  not  used  habitually  as 
arteries  of  interstate  commerce.^ 

POWER  OF   CONGRESS   OVER   NAVIGABLE   WATERS 
GENERALLY. 

The  subject  of  the  respective  powers  of  the  l^^^^^^^ 
national  and  State  governments  in  the  control  and  P°^^ate^ 
regulation  of  navigation  and  navigable  waters, 
necessarily  and  constantly  arises  in  the  considera- 
tion which  is  hereafter  given  to  the  power  to  regu- 
late ships  and  shipping,  and  ferries;  to  the  power 
to  authorize  the  erection  of  bridges,  wharves,  piers, 
and  docks,  and  the  construction  of  canals,  locks, 
dams,  and  booms ;  and  to  the  laws  respecting  pilot- 
age. It  may  here  be  said,  however,  that  while  the 
power  of  Congress  to  regulate  the  navigable  waters 
which  are  connected  with  the  ocean,  between  the 
States,  or  accessible  from  a  State  other  than  those 
in  which  they  lie,  is  not  expressly  granted  in  the 
Constitution,  it  is  nevertheless  a  power  incidental 
to  the  express  power  granted  by  the  commerce 
clause.  It  involves  such  control  as  may  be  neces- 
sary to  insure  their  free  navigation.^ 

(1870)  10  Wall.  (U.  S.)  557;  Rhea  v.  Newport  News,  etc.,  R.  Co., 
(1892)  50  Fed.  Rep.  16;  Neaderhouser  v.  State,   (1867)  28  Ind.  257. 

3  Leovy  v.  U.  S.,  (1900)  177  U.  S.  621. 

Small  streams  declared  navigable  by  State  statutes,  for  the  pur- 
pose of  preserving  them  for  the  use  of  sawlogs  and  various  kinds  of 
small  water  craft,  and  to  prevent  people  from  putting  dams  across 
them,^  are  not  made  navigable  streams  of  the  United  States.  Duluth 
Lumber  Co.  v.  St.  Louis  Boom,  etc.,  Co.,  (1883)  17  Fed.  Rep.  419. 

4  Leovy  v.  U.  S.,    (1900)    177  U.  S.  621;   Miller  v.  New  York, 


W6  REGULATION   OP   COMMERCE 

Chapter  Be&ides  haviug  tke  authority  to  supersede  the 
'  action  of  a  State  which  is  considered  rather  to  ob- 
^rmauve  struct  thau  to  promote  navigation,  Congress  may 
power.  exercise  its  power  over  navigable  waters  affirma- 
tively. The  case  of  South  Carolina  v.  Georgia,^ 
which  was  a  bill  in  equity  filed  by  the  State  of  South 
Carolina  against  the  State  of  Georgia,  the  Secretary 
of  War,  and  United  States  engineer  officers,  for  an 
injunction  to  restrain  the  respondents  from  *^  ob- 
structing or  interrupting  "  the  navigation  of  the 
Savannah  river,  affirmed  the  power  of  Congress  to 
authorize  the  placing  of  an  obstruction  at  the  point 
of  divergence  of  two  channels,  for  the  purpose  and 
probable  effect  of  improving  the  channel  on  the 
Georgia  side  of  the  island  at  the  expense  of  the 
channel  on  the  South  Carolina  side,  by  increasing 
the  flow  of  water  through  the  former,  thus  increas- 
ing its  depth  and  waterway.  Not  only  was  such 
action  by  Congress  well  within  its  derivative  power 
over  navigable  rivers,  but  it  was  not  within  the 
limitation  on  the  exercise  of  that  power  contained 
in  Article  I,  section  9,  of  the  Constitution  declaring 

(1883)  109  U.  S.  385;  Escanaba,  etc.,  Traitsp.  Co.  v.  Chicago,  (1882) 
107  U.  S.  678;  Gilman  v.  Philadelphia,  (1865)  3  Wall.  (U.  S.)  713; 
Grand  Trunk  R.  Co.  v.  Backus,  (1891)  46  Fed.  Rep.  211;  Jolly  v. 
Terre  Haute  Draw-Bridge  Co.,  (1853)  6  McLean  (U.  S.)  237,  13 
Fed.  Cas.  No.  7,441. 

It  is  immaterial  that  the  stream  was  originally  non-navigable  or 
artificially  constructed.  Navigable  Waters,  (1891)  20  Op.  Atty.- 
Gen.  101. 

When  a  compact  between  States  to  keep  open  the  navigation  of  a 
river  is  sanctioned  by  Congress,  it  becomes  a  law  of  the  Union. 
Pennsylvania  tr.  Wheeling,  etc..  Bridge  Co.,  (1851)  13  How.  (U.  S.) 
518. 

Imposing  embargoes  on  any  or  every  class  of  commercial  subjects 
is  within  the  power  of  Congress.  U.  S.  v.  Marigold,  (1850)  9  HaWi 
(U.  S.)  560;  Gibbons  v.  Ogden>  (1824)  9  Wheat.  (U.  S.)  1. 

5  (1876)  93  U.  S.  4. 


rbguijAtion  of  commerce  197 

that  **  no  preference  shall  be  given  by  any  regnla-    Ctemter 
tion  of  commerce  or  revenue  to  the  ports  of  one  ' 

State  over  those  of  another,"  because  of  the  inci- 
dental benefit  to  the  ports  of  the  State  on  the  side 
of  the  river  on  which  the  improved  channel  flowed.* 


POWER  OF  STATES  OVER  NAVIGABLE  WATERS  GENERALLY. 

The  power  of  a  State  over  waters  which  are  con-  subject  to 

paramount 

nected  with  interstate  traffic  may  be  exercised  so  authority 
iong  as  the  free  navigation  of  the  waters  is  not  im-  sr^^^ 
paired,  or  any  system  for  the  improvement  of  their 
navigation  provided  by  the  general  government  is 
not  defeated.  When,  in  the  judgment  of  Congress, 
the  action  of  a  State  is  deemed  to  encroach  upon  free 
navigation,  that  body  may  interfere  and  control  or 
supersede  it,  remove  the  obstruction,  and  provide 
against  a  recurrence  of  the  evilJ 

With  respect  to  rivers  within  the  limits  of  a  Regruiatmg 
state,  which  are  connected  with  interstate  traffic,  within 

'  otate  limus. 

the  State  may  authorize  any  improvement,  and  may 
provide  for  the  removal  of  obstructions  from  the 
rivers  and  harbors  and  deepen  their  channels.^     In 

6  Congress  may  authorize  alterations  to  be  made  in  the  course, 
width,  etc.,  of  navigable  streams  for  the  purpose  of  affording 
increased  facilities  for  navigation,  and  for  this  purpose  may  take 
the  property  of  a  riparian  owner,  but  only  upon  making  or  providing 
just  compensation.  Avery  v.  Fox,  (1868)  1  Abb.  (U.  S.)  246,  2 
Fed.  Cas.  No.  674. 

The  California  Debris  Commission  Act,  the  Act  of  March  1,  1893, 
c.  183,  5  Fed.  Stat.  Annot.  61,  was  held  to  be  within  the  power  of 
Congress.  North  Bloomfield  Gra\'el  Min.  Co.  i\  U.  S.,  (1898)  88 
Fed.  Rep.  664,  affirming  (1897)  81  Fed.  Rep.  243. 

7Huse  V.  Glover,  (1886)  119  U.  S.  543;  Escanaba,  etc.,  Transp. 
Go.  V.  Chicago,  (1882)  107  U.  S.  678;  Oilman  v.  Philadelphia,  (1865) 
3  Wall.  (U.  S.)  713. 

8  Sands  v.  Manistee  River  Imp.  Co.,  (1887)  123  U.  S.  288;  Mobile 
County  V.  Kimball,  (1880)  102  U.  S.  691. 


198  REGULATION    OF    COMMERCE 

Chapter  the  absence  of  express  national  legislation  for- 
'  bidding  it,  the  power  to  regulate  navigable  waters 
within  the  limits  of  a  State,  especially  such  as  are 
not  highways  of  interstate  commerce,  extends  even 
to  the  closing  of  them  under  the  exercise  of  its  police 
power,  and  any  abridgment  of  the  rights  or  privi- 
leges of  those  who  have  been  accustomed  to  use  them 
is  an  affair  between  the  government  of  the  State 
and  its  citizens,  unless  it  comes  in  conflict  with  the 
Constitution  or  laws  of  the  United  States.^  This 
power  of  the  States  includes  the  right  to  construct 
or  authorize  the  construction  of  locks,  dams,  and 
booms  across  navigable  rivers  and  tidewater  creeks, 
and  to  regulate  the  use  of  the  same  until  Congress 
interferes  and  either  assumes  control  of  the  improve- 
ments or  compels  their  removal.^ 
Exclusion  Even  if  Congress  has  the  power  to  exclude  the 

thorkyover  excrclsc  of  authority  by  a  State  over  waters  entirely 
i^^pued"°^  within  its  limits,  it  must  be  done  expressly  and  not 
by  mere  implication.  Though  Congress  may,  in  a 
limited  sense,  have  taken  possession  of  such  a  river, 
by  improving  it,  by  causing  it  to  be  surveyed,  and 
by  establishing  lines  beyond  which  no  wharf,  dock, 
or  other  structure  shall  be  erected  in  the  river  with- 
out the  approval  or  consent  of  the  Secretary  of 

9Leovy  v.  U.  S.,  (1900)  177  U.  S.  621;  Escanaba,  etc.,  Transp. 
Co.  V.  Chicago,  (1882)  107  U.  S.  678;  Northern  Transp.  Co.  v. 
Chicago,  (1878)  99  U.  S.  635. 

lU.  S.  V.  Bellingham  Bay  Boom  Co.,  (1900)  176  U.  S.  211;  Huse 
17.  Glover,  (1886)  119  U.  S.  543;  Pound  v.  Turck,  (1877)  95  U.  S. 
459;  Willson  v.  Black  Bird  Creek  Marsh  Co.,  (1829)  2  Pet.  (U.  S.) 
245. 

In  the  absence  of  legislation  by  Congress,  a  State  has  power  to 
improve  its  lands  and  promote  the  general  health  by  authorizing 
dams  to  be  built  across  its  interior  streams,  though  they  were  previ- 
ously navigable  to  the  sea  by  vessels  engaged  in  the  coastwise  trade. 
Manigault  v.  Springs,  (1905)  199  U.  S.  473. 


REGULATION   OF    COMMERCE  199 

War,  this  has  a  mere  negative  effect,  and  does  not    Chapftc 
indicate  the  will  of  Congress  that  parties  having 


interstate 
route. 


simply  the  consent  of  the  Secretary  may  erect 
structures  without  reference  to  the  wishes  of  the 
State  on  the  subject.^ 

The  distinction  between  the  power  of  a  State 
over  navigable  waters  which  are  interstate  routes 
and  those  which  are  remotely  connected  with  other 
means  of  interstate  transportation,  is  illustrated  by 
the  Gibbons  v.  Ogden,^  and  the  Veazie  v.  Moor^ 
cases.  Both  cases  involved  the  power  of  a  State  to 
grant  an  exclusive  right  to  navigate  waters  of  the 
State.  In  the  Gibbons  v.  Ogden  case,  which  was 
the  earliest  and  leading  case  upon  the  commercial 
power  of  Congress,  it  was  held  that  the  acts  of 
New  York  giving  to  Livingston  and  Fulton  the  ex-  state  ^rant 

'^  *=>  <=>  exclusively- 

elusive  right,  for  a  certain  number  of  years,  to  navi-  ■nter^stltt'*^ 
gate  all  the  waters  within  its  jurisdiction  with 
vessels  propelled  by  steam,  were  unconstitutional 
and  void.  Making  the  navigation  of  those  waters 
subject  to  a  license  of  the  grantees  of  the  State,  that 
ib,  to  such  a  tax  or  other  burden  as  they  might  levy, 
was  an  obstruction  to  commerce  between  the  States 
and  in  conflict  with  the  laws  of  Congress  respecting 
the  coasting  trade.  Although  the  sole  point  in 
judgment  was  whether  the  State  could  regulate  com- 
merce on  her  waters  in  the  face  of  such  legislation 
by  Congress,  yet  the  argument  of  the  court  was  that 
such  attempted  control  of  the  navigable  waters  of 

2  Cummings  v.  Chicago,  (1903)  188  U.  S.  410,  wherein  Mr.  Justice 
Harlan  said :  "  Whether  Congress  may,  against  or  without  the 
expressed  will  of  a  State,  give  affirmative  authority  to  private  par^ 
ties  to  erect  structures  in  such  waters,  it  is  not  necessary  in  this  case 
to  decide."     See  also  Montgomery  v.  Portland,   (1903)   190  U.  S.  80. 

3  (1824)  9  Wheat.  (U.  S.)   1. 

4  (1852)   14  How.  (U.  S.)  568. 


200 


BEGUIiATION    OF    COMMERCE 


liapti 


Exclusive 
navigation 
of  domestic 
improved 
waters. 


Chapter  the  State  was  an  encroacliinent  upon  the  power  of 
Congress,  independently  of  that  legislation.  In  the 
Veazie  v.  Moor  case,  the  power  of  the  State  of 
Maine  to  grant  the  sole  right  of  navigating  the 
river  Penobscot,  in  that  State,  was  sustained.  It 
appeared  that  the  river  is  situated  entirely  within 
the  State,  that  it  has  its  rise  far  in  the  interior 
of  the  State,  that  it  is  not  subject  to  the  tides 
above  the  city  of  Bangor  near  its  mouth,  and  that, 
between  Bangor  and  Oldtown,  a  distance  of  eight 
miles,  the  Penobscot  passes  over  a  fall.  Ifc  further 
appeared  that  the  river  was  crossed  by  four  dams 
erected  for  manufacturing  purposes,  and  for  the 
above  space  was  not  and  never  had  been  navi- 
gable, but  that  there  was  a  railroad  from  Bangor  to 
the  steamboat  landing  at  Oldtown.  The  legislature 
granted  to  certain  parties  authority  to  improve  the 
navigation  of  the  river  above  Oldtown,  and  further 
provided  that  if  the  parties  should  perform  the  con- 
ditions of  the  grant,  they  should  have  the  sole  right 
of  navigating  the  river  by  boats  propelled  by  steam 
as  far  up  as  they  should  render  the  same  navigable. 
The  exclusive  grant  was  sustained  even  against  a 
vessel  which  had  a  federal  license  to  carry  on  the 
coasting  trade. 

The  provision  commonly  inserted  in  an  Act  of 
Congress  admitting  a  new  State  into  the  Union,  that 
all  the  navigable  waters  shall  be  common  highways 
and  forever  free,  does  not  deprive  the  new  State 
of  any  of  the  powers  which  the  original  States  pos- 
sessed over  such  waters  within  their  limits.  In  such 
cases  the  statute  usually  declares  that  the  State  is 
admitted  into  the  Union  on  an  equal  footing  with 
the  original  States  in  all  respects  whatever.*^ 

eCardwell  v.  American  Bridge  Co.,  (1885)  113  U.  S.  205. 

The  Ordinance  of  1787  for  the  government  of  the  territory  of  the 


Rights  of 
new  States 


EBGULATION  OF   GOMMEECE  201 


Servitude  of  Shore  and  Submerged  Soil.  li 


The  common-law  test  of  the  navigability  of  state  and 
waters,  that  they  are  subject  to  the  ebb  and  flow  of  JTwi^isSip. 
the  tide,  is  now  important  only  when  considering  the 
rights  of  riparian  owners  to  the  bed  of  the  stream, 
as  in  some  States  it  governs  in  that  matter.^  The 
ownership  of,  and  sovereignty  over,  ihe  shore  and 
submerged  soil  is  in  the  several  States  and  indi- 
vidual owners  under  them,*^  but  this  is  subject  to 
the  servitude  in  respect  of  navigation  created  in 
favor  of  the  federal  government  by  the  Constitution.^ 

United  States  northwest  of  the  Ohio  river  contained  a  clause  declar- 
ing that  certain  navigable  waters  should  be  common  highways  and 
forever  free.  Upon  the  admission  of  any  part  of  the  territory  as  a 
State,  Buch  a  limitation  ceased  to  have  any  operative  force,  even  if 
it  had  any  after  the  adoption  of  the  Constitution.  "  Equality  of 
constitutional  right  and  power  is  the  condition  of  all  the  States  of 
the  Union,  old  and  new."  Escanaba,  etc.,  Transp.  Co.  v.  Chicago, 
<1882)  107  U.  S.  678;  Sands  v.  Manistee  River  Imp.  Co.,  (1887) 
123  U.  S.  288;  Huse  v.  Glover,  (1886)   119  U.  S.  543. 

6  Escanaba,  etc.,  Transp.  Co.  v.  Chicago,   (1882)   107  U.  S.  678. 

7  New  States  admitted  into  the  Union  since  the  adoption  of  the 
Constitution  have  the  same  rights  as  the  original  States  in  the  tide 
waters,  and  in  the  lands  below  the  high-water  mark,  unless  Congress 
made  grants  of  lands  below  high-water  mark  of  navigable  waters  in 
any  territory  of  the  United  States,  and  before  its  admission  as  a 
State,  in  order  to  perform  international  obligations,  or  to  effect  the 
improvement  of  such  lands  for  the  promotion  and  convenience  of 
commerce  with  foreign  nations  and  among  the  several  States,  or  to 
carry  out  other  public  purposes  appropriate  to  the  objects  for  which 
the  United  States  hold  the  territory.  Shively  v.  Bowlby,  (1894)  152 
U.  S.  1. 

A  statute  granting  the  right  of  property  in  tide-water  marsh 
lands,  with  power  to  reclaim  and  drain,  is  invalid.  Coxe  v.  State, 
0895)   144  N.  Y.  396. 

«  Gibson  V.  U.  S.,  (1897)  166  U.  S.  269;  Illinois  Cent.  R  Co.  v. 
Illinois,  (1892)  146  U.  S.  $S1 ;  Galveston  r.  Menard,  (1859)  23  Tex. 
349. 

Private  ripaiian  rights  of  access  are  subsidiary  to  (xmgressional 
power  over  commerce.  Winifrede  Coal  Co.  v.  Central  R.,  etc,  C5o., 
(1890)   11  Ohio  Dec.  t Reprint)   35,  24  Cine.  Lu  BuL  173. 


202  REGULATION   OF    COMMERCE 

Chapter 

IX.  Levy  of  Tolls  for  River  Improvements. 

To  meet  Tolls  mav  be  levied  upon  all  who  use  the  rivers 

expenses  t     i         i  • 

incurred.  and  haroors  improved  by  the  State  or  under  its 
authority,  to  meet  the  expenses  incurred  in  improv- 
ing the  navigation,  as  by  the  removal  of  rocks,  the 
construction  of  dams  and  locks  to  increase  the  depth 
of  water  and  thus  extend  the  line  of  navigation,  or 
the  construction  of  canals  around  falls.^  Eegu- 
lating  the  floating  of  logs  and  the  exaction  of  reason- 
able charges  for  the  use  of  a  boom  and  its  works, 
including  the  fees  of  State  officials  for  inspecting 
and  scaling,  cannot  be  considered  a  burden  upon 
interstate  commerce.^ 

A  statute  declaring  that  "  it  shall  be  unlawful  for  any  person  or 
corporation  to  transport,  or  carry  through  pipes,  conduits,  ditches, 
or  canals  the  water  of  any  fresh-water  lake,  pond,  brook,  creek,  river, 
or  other  stream  of  this  State,  into  any  other  State,  for  use  therein," 
is  valid  as  applied  to  a  tidal  stream,  the  bed  of  which,  so  far  as  the 
tide  ebbs  and  flows,  is  the  property  of  the  State.  McCarter  v. 
Hudson  County  Water  Co.,   (N.  J.  1905)   61  Atl.  Rep.  710. 

9  Sands  v.  Manistee  River  Imp.  Co.,  (1887)  123  U.  S.  288;  Huse 
V.  Glover,  (1886)  119  U.  S.  543;  Gloucester  Ferry  Co.  V.  Pennsyl- 
vania, (1885)  114  U.  S.  196;  Mobile  County  v.  Kimball,  (1880)  102 
U.  S.  691. 

Charging  tolls  for  improved  navigation  does  not  violate  the  clause 
of  Article  I,  section  10,  of  the  Constitution,  providing  that  "  no 
State  shall,  without  the  consent  of  Congress,  lay  any  imposts  or 
duties  on  imports  or  exports."  .  McReynolds  v.  Smallhouse,  (1871) 
8  Bush  (Ky.)  447. 

Nor  does  it  conflict  with  action  by  Congress  establishing  a  port 
of  entry  and  delivery.  Thames  Bank  v.  Lovell,  (1847)  18  Conn. 
500. 

See  also  infra,  p.  274. 

1  Lindsay,  etc.,  Co.  v.  Mullen,  (1900)  176  U.  S.  126;  Hospes  v. 
O'Brien,  (1885)  24  Fed.  Rep.  145;  Harrigan  v.  Connecticut  River 
Lumber  Co.,  (1880)  129  Mass.  580;  Scott  v.  Willson,  (1825)  3  N.  H. 
321;  Craig  v.  Kline,  (1870)   65  Pa.  St.  399. 

A  State  may  give  to  a  boom  company,  operating  in  a  limited 
territory,  the  right  to  require  compensation  from  the  owners  of  logs 
floated  singly  for  releasing  them  from  obstruction  in  the  stream. 


REGULATION    OF    COMMERCE 


203 


HARBOR   REGULATIONS. 


Chapter 
IX. 


A  State  may,  by  its  legislature,  or  through  a 
board  of  harbor  commissioners,  establish,  for  the 
protection  and  benefit  of  commerce  and  navigation, 
harbor  lines  in  navigable  waters,  not  inconsistent 
with  any  legislation  of  Congress  limiting  the  build- 
ing of  wharves  and  other  structures  upon  lands  not 
already  built  upon.- 

The  power  of  Congress  is  not  limited  to  estab- 
lishing harbor  lines  where  none  have  previously 
existed,  but  it  may  supersede  any  regulations  that 
a  State  has  made,  and  the  same  power  may  be  exer- 
cised in  the  same  place  in  a  different  maimer  as 
often  as  the  needs  of  commerce  in  that  locality  may 
require.  But  if  there  should  be  a  violation  of  the 
laws  of  the  United  States  by  the  location  of  harbor 
lines  by  a  State,  the  vindication  of  the  federal  laws 
should  be  left  to  the  general  government,  and  cannot 
be  invoked  in  a  private  suit  to  restrain  State  action 
which  it  is  alleged  will  invade  the  property  rights  of 
the  complainant.^ 

A  State  cannot  make  any  regulations  respecting 
vessels  while  in  a  harbor  which  would  amount 
to  regulations  of  commerce.  In  Foster  v.  Neiv 
Orleans  ^  a  State  statute  was  held  to  be  void  which 


Authority 
of  State  to 
establish 
harbor 
lines. 


Power  of 
Congress  to 
supersede 
State  regu- 
lations. 


State  regu- 
lations re- 
specting 
vessels. 


Duluth  Lumber  Co.  v.  St.  Louis  Boom,  etc.,  Co.,  (1883)  17  Fed. 
Rep.  419. 

A  statute  giving  to  riparian  owners  compensation  for  logs  drifted 
on  shore  is  valid.     Henry  v.  Roberts,  (1892)  50  Fed.  Rep.  902. 

But  a  statute  granting  to  county  supervisors  the  right  to  charge 
and  collect  toll  for  the  floating  of  logs  and  lumber  is  invalid.  Carson 
River  Lumbering  Co.  v.  Patterson,  ( 1867 )  33  Cal.  334. 

sProsser  v.  Northern  Pac.  R.  Co.,  (1894)  152  U.  S.  59;  Grand 
Trunk  R.  Co.  v.  Backus,   (1891)  46  Fed.  Rep.  211. 

3Yesler  r.  Washington  Harbor  Line  Comrs.,  (1892)  146  U.  S. 
646;  Navigable  Waters,   (1899)  22  Op.  Atty.-Gen.  501. 

*  (1876)  94  U.  S.  246. 


204  REGULATION   OF    COMMMBCE 

Chapter    declared  it  to  be  unlawful  for  any  person  other  than 
'       the  master  and  wardens  of  a  port  to  make  any 

suj^of  survey  of  the  hatches  of  sea-going  vessels  arriving 
at  the  port,  or  to  make  any  survey  of  damaged  goods 
going  on  board  of  such  vessels.  The  act  was  not, 
in  the  sense  of  the  Constitution,  an  inspection  law, 
but  its  purpose  had  been  declared  by  the  State 
courts  to  be  to  furnish  official  evidence  for  the 
parties  immediately  concerned,  and,  where  the  goods 
were  damaged,  to  provide  for  and  regulate  their 
sale. 

The  power  of  the  States  and  their  local  bodies 
to  make  general  regulations  for  the  government  of 
vessels  lying  in  a  harbor  was  summarized  by  Chief 
Justi<je  Taney,  in  the  case  of  Cushing  v.  The  Ship 
John  Fraser,^  wherein  he  said  that  **  the  local 
authorities  have  a  right  to  prescribe  ai  what  wharf 
a  vessel  may  lie,  and  Jiow  long  she  may  remain  there, 
where  she  may  unload  or  take  on  board  particular 
cargoes,  where  she  may  anchor  in  the  harbor,  and 
for  what  time,  and  what  description  of  light  she 
shall  display  at  night  to  warn  the  passing  vessels 
of  her  position,  and  that  she  is  at  anchor  and  not 
under  sail."  The  -case  was  one  of  collision,  in 
which  one  of  the  vessels  at  the  time  of  the  collision 
was  lying  at  anchor  in  a  harbor,  and  was  Jield  to 
Display  of  be  partly  in  fault  for  not 'displaying  the  light  pre- 
scribed by  the  local  rules  nor  the  usual  signal  light 
of  a  vessel  at  anchor  at  a  place  where  vessiels  were 
continually  passing.^  But  in  a  similar  case,^  the 
vessel  at  anchor  was  held  not  to  be  at  fault  in 

6  (1858)  21  How.  (U.  S.)   184. 
«  So  much  of  a  statute  as  declares  in  what  parts  of  the  waters  of 

the  State  it  shall  not  be  lawful  for  vessels  to  anchor  is  valid.     Green 
».  Steamer  Helen,  (1880)   1  Fed.  Rep.  916. 

7  The  Steamboat  N^w  York  v.  Rea,  (1865)   18  How.  (U.  S.)  2£3. 


lights. 


BEGULATION    OF    COMMERCE; 


205 


failing  to  show  a  light  in  conformity  with  the  local    Chapter 


statutes,  but  only  a  light  sufficient  within  the  re- 
quirements of  the  admiralty  rule. 

Harbor  dues  or  port  charges  may  be  exacted  by  "^^^^^j^ 
a  State  from  vessels  in  its  harbors  sufficient  to  meet  ^^nt  ta 
the  expenses  incurred  by  the  execution  of  the  regu-  p^"^^^- 
lations,  and  as  compensation  for  services  actually 
rendered.^     A  Louisiana  statute,  enacting  that  the 
master  and  wardens  of  the  port  of  New  Orleans 
should  be  entitled  to  demand  and  receive,  in  addition 
to  other  fees,  the  sum  of  ^ve  dollars,  whether  called 
on  to  perform  any  service  or  not,  for  every  vessel 
arriving  in  that  port,  was  declared  to  be  invalid  as 
a  regulation  of  commerce.^ 


WHAEVES,   PIERS,   AND   DOCKS. 

A  state  may  directly  or  through  its  municipali-  state^^^ 
ties  authorize  the  construction  of  wharves,  piers,  1^^°^^^ 
and  docks  on  navigable  waters  within  its  limits  or  ie°^fa"e/° 
bordering  thereon,  and  may  regulate  their  use,  in 
any  manner  which  does  not  conflict  with  existing 


8  Harbor  Master  v.  Southerland,  (1872)  47  Ala.  511. 

Fees  required  for  services  actually  rendered  or  tendered  are  not 
imposts  or  duties  on  imports  or  exports,  which  the  States  are  for- 
bidden to  lay,  by  Article  I,  section  10,  of  the  Constitution.  New 
Orleans  v.  Ship  Martha  J.  Ward,  (1859)  14  La.  Ann.  287;  New- 
Orleans  v.  Prats,  (1845)   10  Rob.  (La.)  459. 

9  Southern  Steamship  Co.  v.  Portwardens,  (1867)  6  Wall.  (U.  S.) 
31.  See  the  discussion  in  Gloucester  Ferry  Cb.  v.  Pennsylvania, 
(1885)   114  U.  S.  196. 

Requiring  fees  to  be  paid  whether  the  officer  is  called  upon  to 
render  any  service  or  not  is  a  burden  upon  commerce.  Webb^  v. 
Dunn,  (1882)  18  Fla.  721;  Geraghty  v.  Hackley,  (1872)  36  N.  J.  L. 
459;  Hackley  v.  Geraghty,  (1870)  34  N.  J.  L.  332. 

As  to  fees  for  harbor  masters  and  wardens  being  duties  of  tonnage> 
see  infray  p.  271. 


206 


REGULATION   OF    COMMERCE 


Chapter 
IX. 


Federal 
and  State 
power  to 
define  line 
of  naviera- 
bility. 


Wharfage. 


federal  regulations.^  The  local  regulations  may- 
designate  places  for  the  landing  of  vessels.^ 

The  channel  bank  or  line  of  navigability  may  be 
defined  by  the  State  in  the  absence  of  regulations 
by  Congress,  and  in  the  absence  of  regulations  by 
Congress  or  by  the  State  or  local  authorities,  the 
riparian  proprietor  may  erect  for  himself,  or  for  the 
use  of  the  public,  docks  and  wharves  out  to  the  line 
of  navigability.^  A  State  may  authorize  the  con- 
struction of  wharves  even  below  low-water  mark 
when  Congress  has  not  passed  any  law  affecting 
the  right.*  But,  as  in  the  case  of  bridges  erected 
by  State  authority  alone,  the  risk  of  congressional 
interference  is  assumed,  so  in  erecting  wharves  or 
piers  below  low-water  mark,  even  with  local  or  State 
authority,  their  interference  with  navigation  is 
liable  to  be  abated  by  federal  regulations  establish- 
ing harbor  lines  and  defining  the  line  of  navigability. 

Wharfage  is  governed  by  local  laws  when  there 
is  no  Act  of  Congress  on  the  subject.  By  the  State 
laws  it  is  generally  required  to  be  reasonable,  and 
by  those  laws  its  reasonableness  is  to  be  judged.^' 
The  rule  that  wharfage  is  governed  by  local  laws 


1  Pound  V.  Turck,  (1877)  95  U.  S.  459;  Cincinnati,  etc.,  Packet 
Co.  V.  Catlettsburg,  (1881)  105  U.  S.  559;  Parkersburg,  etc.,  Transp. 
Co.  V.  Parkersburg,   (1882)    107  U.  S.  691. 

2  Cincinnati,  etc.,  Packet  Co.  v.  Catlettsburg,  (1881)  105  U.  S. 
659. 

3  Grand  Trunk  R.  Co.  v.  Backus,  (1891)  46  Fed,  Rep.  211. 

4  Savannah  v.  State,  (1848)  4  Ga.  26. 

8  Charges  to  defray  the  expenses  of  wharves  and  other  works 
necessary  for  the  loading  and  unloading  of  vessels,  and  to  secure 
convenient  access  to  them,  are  not  inconsistent  with  the  clause  of 
Article  I,  section  10,  of  the  Constitution,  providing  that  "no  State 
shall,  without  the  consent  of  Congress,  lay  any  imposts  or  duties  on 
imports  or  exports."  St.  Louis  v.  Schulenburg,  etc..  Lumber  Co., 
(1882)  13  Mo.  App.  56;  First  Municipality  v.  Pease,  (1847)  2  La. 
Ann.  538;  Worsley  v.  Second  Municipality,  (1844)  9  Rob.  (La.)  324. 


REGULATION    OF    COMMERCE  207 

is  subject  to  two  restrictions.     In  the  first  place,  the    Chapter 
rates  must  not  discriminate  in  favor  of  vessels  ply-  . 

ing  exclusively  on  the  waters  of  the  State,  nor 
against  the  productions  of  other  States.^  In  the 
second  place,  they  must  not  violate  the  last  clause 
of  section  10,  Article  I,  of  the  Constitution,  pro- 
viding that  ^^  no  State  shall,  without  the  consent  of 
Congress,  lay  any  duty  of  tonnage.''  This  limita- 
tion is  discussed  in  another  place.'' 

FERRIES. 

The  extent  of  the  power  of  the  States  to  author-  f^Jf^^^^ 
ize  and  regulate  ferries  has  not  been  clearly  deter-  flfdefovei 
mined.     The  power  to  regulate  ferries  over  waters  waTers.^*^ 
entirely  within  their  limits  is  one  that  may  be  exer- 
cised exclusively  by  the  States,^  but  whether  a  State 
may  Hcense  and  regulate  ferries  over  waters  sepa- 
rating two  States  is  still  a  debatable  question.     In 
an  early  case.  Gibbons  v.  Ogden^  there  is  a  dictum 
by  Chief  Justice  Marshall  to  the  effect  that  laws 
respecting    turnpike    roads,    ferries,    etc.,    form    a 
portion  of  that  immense  mass  of  legislation  which 
embraces  everything  within  the  limits  of  a  State  not 
surrendered    to    the    federal    government.     Later 
eases,^  following  that  suggestion,  have  sustained  the  k.wfng°^" 
power  of  one  State  to  grant  a  license  or  franchise  juifce 
for  a  ferry  across   a  navigable   river,   being  the  dictum! 

«Guy  V.  Baltimore,  (1879)  100  U.  S.  434.  See  also  Broeck  v. 
The  Barge  John  M.  Welch,  (1880)  2  Fed.  Rep.  364. 

7  See  infra,  p.  272. 

8U.  S.  V.  Jackson,  (1841)  26  Fed.  Gas.  No.  15,458;  Mills  v.  St. 
Clair  County,  (1845)  7  111.  197;  Marshall  v.  Grimes,  (1866)  41 
Miss.  27;  Carroll  v.  Campbell,  (1891)   108  Mo.  550. 

»  (1824)  9  Wheat.   (U.  S.)   1. 

1  Fanning  v.  Gregoire,  (1853)  16  How.  (U.  S.)  524;  Conway  v, 
Taylor,  (1861)  1  Black  (U.  S.)  603. 


208  EEGULATION   OF   COMMEECB 

Chapter    bonndarj  between  the  granting  State  and  another 

State,  npon  the  theory  that  the  nature  of  the  business 

of  ferrying  is  such  that  the  granting  of  a  privilege 
on  the  subject  does  not  regulate  interstate  commerce. 
Upon  the  supposed  authority  of  these  cases,  the 
power  of  a  State  to  exact  a  license  tax  for  the  privi- 
lege of  ferrying  across  a  river  lying  between  two 
States;  was  affirmed  in  Wiggins  Ferrp  Co.  v.  East 
Doctrine  of  St'.  Louls.^     But  111  Gloucester  Ferry  Co.  v.  Penn- 

early  cases  ^ 

doubted.  sylvania,^  a  statute  of  Pennsylvania,  imposing  a  tax 
on  the  business  of  landing  and  receiving  passengers 
and  freight  at  a  wharf  in  Philadelphia,  on  trans- 
portation across  the  Delaware  river  from  New 
Jersey,  by  a  ferry  company  incorporated  and  domi- 
ciled in  New  Jersey,  was  held  to  be  void  as  repug- 
nant to  the  commerce  clause. 

These  cases  have  been  reviewed  in  a  recent  case,* 

wherein  the  power  of  a  county  to  recover  statutory 

Transfer      penalties  iucurred  by  a  transfer  company  because 

tSS?p?rt-    it  had  carried  on  a  ferry  for  transporting  railroad 

cars.  ears  from  the  county  to  the  shore  of  another  State 

without  obtaining  a  license  from  the  county,  as  was 

required  by  the  law  of  the  State,  was  denied.     Mr. 

Justice  White,  speaking  for  the  court,  observed: 

*'  Conceding,  arguendo,  that  the  police  power  of  a 

State  extends  to  the  establishment,  regulation,  and 

licensing  of  ferries  on  a  navigable  stream,  being  the 

boundary  between  two  States,  none  of  the  cases 

justifies  the  proposition  that  such  power  embraces 

transportation  by  water  across  such  a  river  which 

does  not  constitute  a  ferry  in  a   strict  technical 

2  (1882)  107  U.  S.  365. 
8  (1885)    114  U.  S.  196. 

*St.  Clair  County  v.  Interstate  Sand,  etc.,  Transfer  Co.,  (1904) 
192  U.  S.  454. 


REGULATION   OF   COMMERCE 


209 


sense;  "  and  he  defined  a  ferry  in  a  strict  sense  as 
confined  to  the  transportation  of  persons  with  or 
without  their  property.  Though  conceding,  as  above, 
arguendo,  the  court  strongly  intimated  that  the 
doctrine  of  the  early  cases,  that  the  police  power  of 
the  States  extends  to  the  regulation  of  ferries  over 
navigable  waters  constituting  boundaries  between 
States,  has  been  modified  by  the  ruling  in  the 
Gloucester  Ferry  case,  supra,  and  by  the  case  of 
Covington,  etc..  Bridge  Co.  v.  Kentucky,^  wherein 
it  was  held  that  one  State  has  not  power  to  regulate 
the  rates  of  toll  over  a  bridge  connecting  that  State 
with  another. 


a^^ 


PILOTS   AND   PILOTAGE 

The  States  have  power  to  legislate  concerning  statepowcr 
pilots  and  pilotage,  as,  although  such  laws  are  regu- 
lations of  commerce,  they  fall  within  that  class  of 
powers  which  may  be  exercised  by  the  States  until 
Congress  sees  fit  to  act  upon  the  subject.^ 

The  Act  '^  passed  by  the  first  Congress  that  met  Federal 
after  the  adoption  of  the  Constitution,  which  de-  pfsute  ^ 

I&ws* 

clared  that  pilots  shall  continue  to  be  regulated  ^  *  by 

e  (1894)   154  U.  S.  204. 

Ferries  are  within  the  scope  of  the  admiralty  jurisdiction  of  the 
federal  courts.  The  Steamboat  Cheeseman  v.  Two  Ferryboats, 
(1870)  2  Bond  (U.  S.)  363,  5  Fed.  Gas.  No.  2,633.' 

6  Gibbons  v.  Ogden,  (1824)  9  Wheat.  (U.  S.)  1;  Cooley  v.  Board 
of  Wardens,  (1851)  12  How.  (U.  S.)  299;  Ex  p.  McNiel,  (1871)  13 
Wall.  (U.  S.)  236;  Wilson  v.  McNamee,  (1880)  102  U.  S.  572; 
Olsen  V.  Smith,  (1904)  195  U.  S.  332;  The  South  Cambria,  (1886) 
27  Fed.  Rep.  525;  The  Charles  A.  Sparks,  (1883)  16  Fed.  Rep.  480; 
The  William  Law,  (1882)  14  Fed.  Rep.  792;  The  Alzena,  (1882)  14 
Fed.  Rep.  174;  The  Clymene,  (1882)  12  Fed.  Rep.  346,  affirming 
(1881)  9  Fed.  Rep.  164;  Barnaby  v.  State,  (1863)  21  Ind.  450; 
Cisco  V.  Roberts,  (1867)  36  N.  Y.  292;  People  r.  Sperry,  (1867)  50 
Barb.  (N.  Y.)  170;  State  v.  Penny,  (1882)  19  S.  Car.  218. 

7  Act  of  August  7,  1789,  c.  9.    See  5  Fed.  Stat.  Annot.  747. 

14 


210 


BEGULATION   OF    COMMERCE 


Chapter 
IX. 


^federal 
'Statutes 
^paramount. 


Compen- 
sation of 
:#ilots. 


such  laws  as  the  States  may  respectively  hereafter 
enact  for  that  purpose  ' '  was  a  clear  and  authorita- 
tive declaration  that  the  nature  of  the  subject  was 
such  that  until  Congress  shall  find  it  necessary  to 
exert  its  power  it  should  be  left  to  the  legislation 
of  the  States ;  that  it  is  local  and  not  national ;  and 
that  it  is  likely  to  be  best  provided  for,  not  by  one 
system  or  plan  of  regulations,  but  by  as  many  as 
the  legislative  discretion  of  the  several  States  should 
deem  applicable  to  the  local  peculiarities  of  the 
ports  within  their  limits.  Acts  of  Congress  have 
been  passed  regulating  the  employment  of  any  pilot 
licensed  by  either  of  the  States  divided  by  boundary 
waters,  and  the  employment  of  pilots  on  coastwise 
vessels,  and  also  prohibiting  discrimination  in  the 
rate  of  pilotage.  These  laws,  and  any  which  Con- 
gress may  see  fit  to  enact  on  the  subject,  supersede 
only  such  State  legislation  as  directly  conflicts  there- 
with,® and  even  where  a  State  statute  contains  a 
conflicting  provision,  the  statute  will  otherwise  be 
given  operation  when  the  Supreme  Court  of  that 
State  has,  by  construction,  eliminated  the  objection- 
able provision.^ 

Laws  regulating  the  compensation  of  pilots  have 
been  passed  by  the  maritime  States,  in  some  in- 
stances providing  that  when  a  vessel  is  spoken  by 
a  pilot,  and  his  services  declined,  he  should  be  enti- 
tled to  compensation,  generally  one-half  pilotage 
fees,  and  such  laws  have  been  declared  to  be  within 


8  Thompson  v.  Darden,  (1905)  198  U.  S.  310;  Spraigue  v.  Thomp- 
son, (1886)  118  U.  S.  90,  reversing  (1882)  69  Ga.  409;  Pacific  Mail 
Steamship  Co.  v.  Joliffe,  (1864)  2  Wall.  (U.  S.)  450.  See  Freeman 
V.  The  Undaunted,  (1889)  37  Fed.  Rep.  662;  The  Alameda,  (1887) 
^1  Fed.  Rep.  366;  Chapman  v.  Miller,  (1844)  2  Spears  L.  (S.  Car.) 


•  Olsen  1?.  Smith,  (1904)  195  U.  S.  332. 


REGULATION   OP   COMMERCE  211 

the  power  of  the  States  to  enact.^      In  Wilson  v.    Chapter 
McNamee,^  wherein  was  questioned  the  validity  of  ' 

the  New  York  statute  requiring  the  payment  of  com- 
pensation when  services  have  been  tendered,  though 
the  master  of  a  vessel  may  have  refused  to  accept 
the  services  of  the  pilot,  it  was  objected  that  the 
services  were  tendered  outside  the  lurisdiction  of  Haifpiiot- 

**  aere  on 

the  State  of  New  York.  But  the  court  held  that  a  J^^^f/eJ' 
vessel  at  sea  is  considered  as  a  part  of  the  territory 
to  which  it  belongs  when  at  home,  and  that  the  pilot, 
upon  his  boat,  had  the  same  authority  from  the  laws 
of  New  York  to  tender  and  demand  employment, 
and  the  same  legal  consequences,  under  the  circum- 
stances, followed  the  refusal  of  the  master,  as  if 
both  vessels  had  then  been  infra  fauces  terrce,  where 
the  municipal  jurisdiction  of  the  State  was  complete 
and  exclusive.  This  principle,  said  the  court,  by 
Mr.  Justice  Swayne,  **  is,  of  course,  subject  to  the 
paramount  authority  of  the  Constitution  and  laws 
of  the  United  States  over  the  foreign  and  inter- 
state commerce  of  the  country,  and  the  commercial 
marine  of  the  country  engaged  in  such  commerce, 

1  "  If  the  services  are  accepted,  a  contract  is  created  between  the 
master  or  owner  of  the  vessel  and  the  pilot,  the  terms  of  which,  it 
is  true,  are  fixed  by  the  statute;  but  the  transaction  is  not  less  a 
contract  on  that  account.  If  the  services  tendered  are  declined,  the 
half  fees  allowed  are  by  way  of  compensation  for  the  exertions  and 
labor  made  by  the  pilot,  and  the  expenses  and  risks  incurred  by  him 
in  placing  himself  in  a  position  to  render  the  services,  which,  in  the 
majority  of  cases,  would  be  required.  The  transaction,  in  this  latter 
case,  between  the  pilot  and  the  master  or  owners,  cannot  be  strictly 
termed  a  contract,  but  it  is  a  transaction  to  which  the  law  attaches 
similar  consequences;  it  is  a  quasi  contract.  The  absence  of  assent 
on  the  part  of  the  master  or  owner  of  the  vessel  does  not  change  the 
case.  In  that  large  class  of  transactions  designated  in  the  law  as 
implied  contracts,  the  assent  or  convention  which  is  an  essential 
ingredient  of  an  actual  contract  is  often  wanting."  Per  Mr.  Justice 
Field,  writing  the  opinion  of  the  court,  in  Pacific  Mail  Steamship 
Co.  V.  Joliffe,   (1864)  2  Wall.  (U.  S.)  450. 

2  (1880)  102  U.  S.  572. 


212 


KEGULATION   OF    COMMEECE 


Chapter 
IX. 


Preference 
to  ports  of 
one  Sute. 


and  subject  also  to  the  like  power  of  Congress  ^  to 
define  and  punish  piracies  and  felonies  committed 
on  the  high  seas  and  offenses  against  the  law  of 
nations.'  "^ 

Clause  6,  section  9,  of  Article  I  of  the  Constitu- 
tion, which  provides  that  no  preference  shall  be 
given  by  any  regulation  of  commerce  or  revenue  to 
the  ports  of  one  State  over  those  of  another,  does 
not  deny  to  Congress  the  power  to  permit  the  several 
States  to  adopt  pilotage  regulations.* 


Power  of 
Congress  to 
construct. 


Authority 
of  State 
over  canal 
not  con- 
nected with 
navigable 
waters. 


CANALS. 

Congress  no  doubt  has  power  to  construct  or 
authorize  the  construction  of  canals  and  waterways 
to  connect  navigable  bays,  harbors,  and  rivers  with 
each  other  or  with  the  interior  of  the  country  for 
the  accommodation  of  interstate  commerce,  and  to 
prescribe  regulations  for  their  use  and  protection.^ 

A  canal  constructed  by  a  State,  or  a  watercourse 
partaking  of  the  character  of  a  canal,  exclusively 
within  the  interior  of  a  State,  not  connecting  other 
navigable  waters,  and  made  practicable  for  naviga- 

3  It  has  been  said  that  the  ground  of  the  recognition  and  approval 
of  the  right  of  the  States  to  establish  pilotage  regulations  has  been 
the  necessity  of  conforming  the  regulations  to  the  local  peculiar- 
ities of  each  port,  and  that  when  that  is  satisfied,  any  further  inter- 
ference with  commerce  is  as  liable  to  objection  as  any  other  com- 
mercial regulation.  Williams  v.  The  Lizzie  Henderson,  (1880)  29 
Fed.  Cas.  No.  17,72ea. 

♦  Thompson  v.  Darden,  (1905)  198  U.  S.  310. 

A  State  pilotage  law  which  is  found  to  be  within  the  appropriate 
line  which  limits  laws  for  the  regulation  of  pilots  and  pilotage,  and 
which  imposes  half  pilotage  when  a  pilot  is  not  received,  is  not 
repugnant  to  the  clause  of  Article  I,  section  8,  of  the  Constitution, 
which  declares  that  all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States,  nor  is  it  in  effect  an  impost  or  duty 
on  imports  or  exports  or  a  duty  of  tonnage  within  the  meaning  of 
Article  I,  section  10.  Cooley  v.  Board  of  Wardens,  (1851)  12  How. 
(U.  S.)  299. 

6  Stockton  V.  Baltimore,  etc.,  R.  Co.,  (1887)  32  Fed.  Rep.  9. 


REGUIATION    OF    COMMERCE  213 

tion  by  the  funds  of  the  State,  or  by  privileges  it    Chapter 
may  have  conferred  for  the  accomplishment  of  the  ' 

same  end,  is  exclusively  within  the  power  of  the 
State  to  regulate,^  and  a  license  procured  from  the 
United  States  to  prosecute  the  coasting  trade  con- 
veys no  privilege  to  the  vessel  licensed  to  use  such 
canals  and  improved  waterways  free  of  tolls  or  of 
any  conditions  whatever. 

In  this  connection  it  is  of  interest  to  note,  though  Admiralty 

'  *=■       jurisdiction. 

not  strictly  concerning  the  subject  of  commerce,  that 
it  has  been  held  that  a  United  States  admiralty  court 
had  jurisdiction  in  rem  in  the  case  of  a  collision 
between  two  canal  boats  of  more  than  twenty  tons 
burden,  one  of  which  was  in  tow  and  the  other  pro- 
pelled by  steam,  which  occurred  on  a  canal  used  as 
a  highway  for  commerce  between  ports  in  different 
States,  though  the  canal  was  wholly  artificial,  and 
wholly  within  the  body  of  a  State,  and  subject  to 
its  ownership  and  control,  and  though  one  or  the 
other  of  the  vessels  was  at  the  time  of  the  collision 
on  a  voyage  from  one  place  in  the  State  to  another 
place  therein."^  The  case  of  The  Robert  W.  Par- 
sons ^  was  one  also  of  admiralty  jurisdiction,  wherein 
it  was  decided  that  a  contract  for  the  repair  of  a 
canal  boat  while  lying  on  a  drydock  in  a  canal  wholly 
within  the  limits  of  a  State,  connecting  navigable 
waters,  was  within  the  exclusive  jurisdiction  of 
admiralty. 

«  Veazie  v.  Moor,  (1852)  14  How,  (U.  S.)  568. 

In  an  opinion  given  to  the  Secretary  of  War  on  February  10, 
1899,  Attorney-General  John  W.  Griggs  said:  "Canals  being  arti- 
ficial waterways  are  likewise  means  of  commercial  transportation,  as 
well  as  natural  lakes  and  rivers,  and  the  same  principles  may  be 
applied  to  them  that  are  applied  to  bridges,  turnpikes,  streets,  and 
railroads."     Navigable  Waters,  (1899)  22  Op.  Atty.-Gen.  332. 

TEx  p.  Boyer,  (1884)   109  U.  S.  629. 

8  (1903)   191  U.  S.  17. 


CHAPTER  X. 
SHIPS  AND  SHIPPING. 

GEISTERAL   POWERS   OF    CONGRESS   AND   THE   STATES. 

Chapter       A    S  instruments  of  intercourse  and  trade,  ships 

'        J\     and  vessels,  as  well  as  the  ofl&cers  and  sea- 

powerof  men  employed  in  their  navigation,  are  em- 

Congress  /^ 

over  vessels  braced  iu  the  power  of  Congress  to  regulate  com- 


and  crews. 


merce.^  A  law  or  rule  emanating  from  any  lawful 
authority  which  prescribes  terms  or  conditions  on 
which  alone  a  vessel  can  discharge  its  passengers  is 
a  regulation  of  commerce,  and,  in  the  case  of  vessels 
and  passengers  coming  from  foreign  ports,  is  a 
regulation  of  commerce  with  foreign  nations,  and 
Use  by  for.  cauuot  bc  adoptcd  by  a  State.^  Congress  may  per- 
ofiinprove-  mit  or  prohibit  the  entrance  into  United  States 

meats  pat-  ^ 

thUco'Si-     ports  of  any  foreign  ship  which  in  its  construction 
'^-  or  equipment  uses  any  improvement  patented  in  this 

country,  or  may  prescribe  the  terms  and  regulations 
upon  which  such  vessel  shall  be  allowed  to  enter. 
The  rights  of  property  and  exclusive  use  granted  to 
a  patentee  do  not  extend  to  a  foreign  vessel  lawfully 
entering,  and  the  use  of  such  improvement,  in  the 
construction,  fitting  out,  pr  equipment  of  such  vessel, 
while  she  is  coming  into  or  going  out  of  a  port  of 
the  United  States,  is  not  an  infringement  of  the 
rights  of  a  patentee,  provided  it  was  placed  upon 

1  state  Tonnage  Tax  Cases,  (1870)   12  Wall.  (U.  S.)  204. 

2  Henderson  v.  New  York,  (1876)  92  U.  S.  259. 


EEGULATION   OF    COMMERCE 


215 


T 


Federal 
crimioai 
laws. 


her  in  a  foreign  port,  and  authorized  by  the  laws  of    Cbaptsr 
the  country  to  which  she  belongs.^ 

Acts  of  Congress  making  it  a  criminal  offense  to 
plunder  vessels  in  distress,*  to  board  a  vessel  before 
arrival.^  or  to  enter  into  a  conspiracy  to  cast 
away  any  vessel,^  are  within  the  power  of  Con- 
gress to  regulate  commerce  by  means  of  water 
transportation. 

Local  police  regulations  respecting  vessels  ply-  f^^^l''^^^^ 
ing  the  navigable  waters  of  a  State  may  be  enforced,  '*°'''*' 
however,  when  they  do  not  conflict  with  federal  regu- 
lations. Thus  a  statute  requiring  vessels  to  be  pro- 
vided with  fire  screens,"^  and  a  municipal  ordinance 
prohibiting  the  emission  of  dense  smoke  from  boats,® 
have  been  held  to  be  valid. 


INSPECTION  AND  LICENSING. 

Congress  may  provide  and  has  provided  for  the 
enrolment  and  licensing  of  vessels  engaged  in  the 
coasting  trade.^  Ships  or  vessels  of  the  United 
States,  within  the  meaning  of  Acts  of  Congress,  are 
those  which  are  registered  and  enrolled  under  fed- 

3  Brown  v.  Duchesne,  (1856)   19  How.  (U.  S.)   183. 

4  Rev.  Stat.  U.  S.,  §  5358,  7  Fed.  Stat.  Annot.  87;  U.  S.  v. 
Coombs,  (1838)  12  Pet.  (U.  S.)  72. 

5  Rev.  Stat.  U.  S.,  §  4606,  7  Fed.  Stat.  Annot.  86;  U.  S.  v.  Ander- 
son, (1872)  10  Blatchf.  (U.  S.)  226,  24  Fed.  Cas.  No.  14447. 

«Rev.  Stat.  U.  S.,  §  5364,  7  Fed.  Stat.  Annot.  89;  U.  S.  v.  Cole, 
(1853)  5  McLean  (U.  S.)  513,  25  Fed.  Cas.  No.  14832. 

7  Burrows  v.  Delta  Transp.  Co.,   (1895)   106  Mich.  582. 

8  Harmon  v.  Chicago,  (1884)   110  111.  400. 
»Sinnot  v.  Davenport,  (1859)  22  How.   (U.  S.)  227. 

Boats  wholly  engaged  on  ferries  within  a  State,  and  owned  in 
such  State,  are  subject  to  Acts  of  Congress  requiring  steamboats  to 
be  licensed  and  inspected.  U.  S.  v.  Jackson,  (1841)  26  Fed.  Cas. 
No.  15,458;  The  Steamboat  Sunswick,  (1872)  6  Ben.  (U.  S.)  112, 
23  Fed.  Cas.  No.  13,624;  Inspection  of  Steam  Ferry  Boats,  (1884) 
18  Op.  Atty.-Gen.  16. 


216  RBGTJLATION   OF   COMMERCE 

Chapter  eral  statutes.*  In  The  Daniel  BalP  the  question  was 
'  l^resented  whether  Acts  of  Congress  requiring  the 
ve^j^y^-  inspection  and  licensing  of  vessels  are  applicable 
S^rstatc.  to  ^  steamer  engaged  as  a  common  carrier  between 
'  places  in  the  same  State,  when  a  portion  of  the 
merchandise  transported  by  her  is  destined  to  places 
in  other  States,  or  comes  from  places  without  the 
State,  she  not  running  in  connection  with  or  in  con- 
tinuation of  any  line  of  steamers  or  other  vessels, 
or  any  railway  line  leading  to  or  from  another 
State.  The  Daniel  Ball  was  a  vessel  propelled  by 
steam,  engaged  in  navigating  Grand  river  in  the 
State  of  Michigan,  and  to  recover  the  penalty  pro- 
vided for  want  of  inspection  and  license  under  Acts 
of  Congress  a  libel  was  filed  by  the  United  States. 
The  court  laid  down  the  rule  that  *'  the  fact  that 
several  different  and  independent  agencies  are  em- 
ployed in  transporting  the  commodity,  some  acting 
entirely  in  one  State,  and  some  acting  through  two 
or  more  States,  does  in  no  respect  affect  the  char- 
acter of  the  transaction.  To  the  extent  in  which 
each  agency  acts  in  that  transportation,  it  is  subject 
to  the  regulation  of  Congress,"  and  while  mindful 
that  the  case  related  to  transportation  on  navi- 
gable waters,  intimated  that  the  rule  might  apply 
to  interstate  commerce  when  carried  on  by  land 
transportation. 
Lighters  A  steamboat  engaged  as  a  lighter  and  towboat,^ 

*»<»^  or  simply  as  a  tugboat,*  is  entitled  to  the  privileges 
resulting  from  federal  enrolment  and  to  exemption 
from  burdens  imposed  by  State  regulation. 

iWhite'B  Bank  v.  Smith,  <1868)  7  Wall.  (U.  8.)  646. 
a  (1870)  10  Wall.  (U.  S.)  657. 

t  Foster  r.  Davenport,  (1859)  22  How.  (U.  S.)  244. 
4Harman  v.  Chicago,  (1893)  147  U.  S.  396. 


REGULATION   OP    COMMERCE  217 

Vessels  enrolled  and  licensed,  pursuant  to  the    Ch^ter 
laws  of  the  United  States,  have  conferred  upon  them  ' 

as  full  and  complete  authority  to  carry  on  the  coast-  Effect  of 

^  V  ^  enrolment 

ing,  foreign,  and  interstate  trade  as  it  is  in  the  and  license. 
power  of  Congress  to  confer.^  Such  enrolment  and 
license,  nevertheless,  confer  no  right  that  should  be 
derived  from  State  permission  nor  immunity  from 
the  operation  of  the  valid  laws  of  a  State.  They 
do  not  give  a  vessel  any  ferry  rights,^  and  if  a  vessel 
of  the  United  States  engaged  in  commerce  between 
two  States  be  interrupted  therein  by  a  law  of  the 
State,  the  seizure,  detention,  and  forfeiture  of  such 
vessel  may  be  authorized  in  the  enforcement  of  the 
State  law,  as  in  the  case  of  such  a  law  prohibiting 
the  use  of  particular  instruments  in  dredging  for 
oysters."^ 

RECORDING  ACTS. 

Matters  pertaining  to  the  title  and  property  of  f^^*^ 
vessels  of  the  United  States  may  be  regulated  by  **='^ 
Congress,  and  include  recording  acts  enacted  for 
the  protection  of  bona  fide  purchasers  and  mort- 
gagees. Such  a  statute  was  the  Act  of  Congress  of 
July  29,  1850,^  providing,  in  part,  ^'  that  no  bill 
of  sale,  mortgage,  hypothecation,  or  conveyance  of 
any  vessel,  or  part  of  any  vessel  of  the  United 
States,  shall  be  valid  against  any  person  other  than 
the  grantor  or  mortgagor,  his  heirs  and  devisees, 
and  persons  having  actual  notice  thereof,  unless 
such  bill  of  sale,  mortgage,  hypothecation,  or  con- 
veyance is  recorded  in  the  office  of  the  collector  of 

5  Gibbons  v.  Ogden,  (1824)  9  Wheat.  (U.  S.)  1. 
•  Conway  v.  Taylor,    (1861)    1  Black   (U.  S.)    603. 

7  Smith  V.  Maryland,  (1855)   18  How.   (U.  S.)   71. 

8  This  part  of  the  statute  was  brought  forward  into  Rev.  Stat. 
U.  S.,  §  4192,  7  Fed.  Stat.  Annot.  42. 


tration 
laws. 


218  REGULATION    OF    COMMERCE 

ChM)ter    the  customs,  where  such  vessel  is  registered  or  en- 

1 rolled,''  and  the  recording  of  a  mortgage  under  the 

act  protects  the  interest  of  the  mortgagee  against 
subsequent  purchasers  or  mortgagees  by  its  own 
force,  irrespective  of  any  State  law  on  the  subject.^ 
fi?t\on**^  ^  State  cannot  require  owners  of  such  vessels 
to  comply  with  State  regulations  respecting  the 
registration  of  vessels,  when  such  regulations  im- 
pose conditions  upon  the  privilege  of  navigating  the 
waters  of  the  State  in  addition  to  those  required  by 
federal  laws,^  and  a  statute  which  provides  that  a 
mortgage  given  to  secure  a  note  which  does  not  on 
its  face  show  that  it  is  secured  by  a  chattel  mort- 
gage, shall  be  absolutely  void,  is  inapplicable  to  a 
mortgage  on  a  vessel  recorded  under  an  Act  of 
Congress.^ 

»  Aldrich  v.  iEtna  Ins.  Co.,  (1869)  8  Wall.  (U.  S.)  491;  White's 
Bank  v.  Smith,  (1868)  7  Wall.  (U.  S.)  646;  Shaw  v.  McCandless, 
(1858)   36  Miss.  296. 

1  Such  a  law,  passed  by  the  State  of  Alabama  in  1854,  providing 
that  it  should  be  the  duty  of  the  owners  of  steamboats  navigating 
the  waters  of  the  State,  before  such  boat  should  leave  a  port  of  the 
State,  to  file  in  the  office  of  the  probate  judge  a  statement  in  writing, 
setting  forth  the  name  of  the  steamboat  and  of  the  owner  or  owners, 
his  or  their  place  or  places  of  residence,  and  their  interest  therein, 
which  statement  should  be  signed  and  sworn  to  by  the  owners,  or 
their  agent  or  attorney,  and  which  statement  should  be  recorded  by 
the  said  judge  of  probate;  and  also,  in  case  of  a  sale  of  said  boat, 
making  it  the  duty  of  the  vendee  to  file  a  statement  of  the  change 
of  ownership,  his  place  of  residence,  and  the  interest  transferred, 
which  statement  was  required  to  be  signed  by  the  vendor  and  vendee, 
his  or  their  agent  or  attorney,  and  recorded  in  the  office  of  the  afore- 
said judge,  was  held  to  be  invalid,  in  Sinnot  v.  Davenport,  (1859) 
22  How.   (U.  S.)   227. 

2  The  Gordon  Campbell,  (1904)   131  Fed.  Rep.  963. 
State  statutes  providing  that  a  mortgage  of  personal  property 

ehall  not  be  valid  unless  possession  of  the  mortgaged  property  be 
delivered  to,  and  retained  by,  the  mortgagee,  or  unless  such  mort- 
gage shall  be  duly  recorded  in  the  place  in  which  the  property  shall 
be  at  the  time  of  the  mortgage,  or  in  the  place  in  which  the  mort- 


REGULATION   OF   COMMERCE 


219 


REGULATING   COMMERCE   AND  ADMIRALTY    JURISDICTION.     Chapter 


T 


th< 


But  the  question  as  to  what  vessels  may  be  re-  • 

quired  to  conform  to  the  regulations  prescribed  by 
Congress,  whether  those  engaged  in  interstate  and 
foreign  commerce  or  all  vessels  navigating  the  navi- 
gable waters  of  the  United  States,  can  be  deter- 
mined by  reference  to  the  decisions  of  the  United 
States  Supreme  Court  only  to  a  limited  extent. 
The  necessity  of  keeping  in  mind  the  dual  power  of 
the  federal  government  over  navigable  waters, 
under  the  power  to  regulate  commerce,  and  also 
under  the  grant  of  admiralty  and  maritime  juris- 
diction, involves  the  questions,  as  they  arise,  in 
some  doubt.^ 

With  respect  to  the  power  to  regulate  commerce,  au  vessels 

••-  ■•-  '^  'to  conform 

it  must  be  conceded  that  Congress  has  power  to  pre-  ruiS^oPi 
scribe  the  law  of  the  highway,  so  far  as  may  be  ^'s^'^^y- 
necessary  to  protect  interstate  and  foreign  com- 
merce, and  to  promote  the  safety  and  convenience 
of  navigable  waters  considered  as  highways  of 
commerce.  To  federal  regulations  having  that  ob- 
ject all  vessels  must  conform,  whether  they  are 
engaged  in  foreign  or  interstate  commerce,  in  purely 
intrastate  commerce,  or  in  no  commerce  at  all  as  in 
the  case  of  pleasure  yachts.  All  such  vessels  must 
comply  with  the  rules  prescribed  for  the  prevention 
of  collisions,  such  as  rules  concerning  lights,  signals, 
and  steering  and  sailing,  and  for  the  qualifications 
and  licensing  of  pilots  and  engineers.* 

gagor  resides,  are  invalid  as  conflicting  with  the  Acts  of  Congress 
above  referred  to.  Mitchell  v.  Steelman,  (1857)  8  Cal.  363;  Cun- 
ningham V.  Tucker,  (1873)  14  Fla.  251;  Wood  v.  Stockwell,  (1867) 
55  Me.  76. 

3  See  supra,  p.  194. 

*  While  a  rule  of  navigation  prescribed  by  the  law  of  a  State,  as 


220  REGULATION   OF   COMMERCE 

Chapter         To  the  ^rant  of  admiralty  and  maritime  juris- 

'       diction  may  probacy  be  referred  the  power  of  Con- 

nimbir^of    S^^^^  ^^  proscribo  rules,  and  to  declare  penalties  for 

-Predu?    their   violation,   respecting  the   carrying   of  more 

Igafnstfire.  passcngcrs  than  allowed  by  law,^  and  precautions  to 

be  taken  against  fire,^  even  as  applied  to  vessels 

engaged  in  intrastate  trade. 
Lawofves-         Thc  powcr  to  prcscribe  the  rules  by  which  navi- 

sel-owner's  . 

liabuity.  gation  shall  be  governed,  necessarily  involves  the 
right  to  declare  the  liability  of  the  owners  of  vessels 
plying  on  navigable  waters  of  the  United  States 

to  thie  lights  a  vessel  shall  carry,  is  binding  upon  the  courts  of  the 
State,  it  cannot  regulate  the  decisions  of  the  federal  courts,  admin- 
istering the  general  admiralty  law.  They  can  be  governed  only  by 
the  principles  peculiar  to  that  system,  generally  recognized  in 
maritime  countries,  as  modified  by  Acts  of  Congress.  The  Steam- 
boat New  York  v.  Rea,   (1855)    18  How.    (U.  S.)   223. 

5  The  City  of  Salem,  (1889)  37  Fed.  Rep.  846;  The  Hazel  Kirke, 
(1885)  25  Fed.  Rep.  601. 

Requiring  laws  for  the  safety  of  passengers  to  be  conspicuously 
posted  on  vessels  is  within  the  power  of  Congress,  under  this  clause 
and  the  clause  respecting  admiralty  and  maritime  jurisdiction.  The 
Lewellen,  (1868)  4  Biss.  (U.  S.)  156,  15  Fed.  Cas.  No.  8307. 

«The  Garden  City,   (1886)   26  Fed.  Rep.  766. 

But  in  The  Gretna  Green,  (1883)  20  Fed.  Rep.  901,  which  was 
an  action  to  recover  statutory  penalties  because  barges,  carrying 
passengers  on  excursions,  and  being  towed,  were  not  provided  with 
the  means  of  safety  for  carrying  passengers  prescribed  by  Acts  of 
Congress,  the  court  said :  "  The  complaint  is  that  the  barges  were 
not  provided  with  the  means  of  safety  for  passengers  as  prescribed 
by  Congress.  They  were  in  tow  of  a  steamer  which,  the  petition 
shows,  was  regularly  enrolled  and  licensed,  and  subject  to  the  laws 
of  Congress.  It  may  be  that  Congress  has  the  power  to  prescribe 
the  law  of  the  highway  so  far  as  may  be  necessary  to  protect  the 
interstate  commerce,  but  no  court  will  undertake  to  expound  the 
Constitution  and  declare  incidental  powers,  unless  the  question  is 
directly  presented,  and  the  case  imperatively  requires  it.  The 
steamer  which  had  these  barges  in  tow  being  subject  to  the  naviga- 
tion laws  of  the  United  States,  the  mere  fact  that  she  took  in  tow 
the  barges  had  nothing  to  do  with  any  interference  with  the  proper 
navigation  of  the  Ohio  river.*' 


KEGULATION   OF    COMMERCE  221 

or  the  high  seas  for  infractions  of  the  regulations    Chapter 
prescribed,  though  the  vessels  are  engaged  in  the  , 

transportation  of  passengers   and  goods   between   ' 
ports  and  places  in  the  same  Stated     The  power  of 
Congress  to  legislate  respecting  the  limitation  of 
vessel-owners'  liability  is  not,  however,  limited  by 
the  commerce  clause.     Such  a  law  is  one  in  amend- 
ment of  the  maritime  law  of  the  country,  and  the 
power  of  Congress  to  make  amendments   of  the 
maritime  law  has  been  held  to  be  coextensive  with 
that  law.^      But  with  reference  to  the  rights  and  Application 
liabilities  of  persons  engaged  in  commerce,  the  laws  J.|^;j\^°^„^ 
of  the  States  govern  in  matters  upon  which  the  i»a»'»"ties. 
laws  of  Congress  are  silent;  and  in  the  absence  of 
federal  regulations  touching' the  liability  of  parties 
for  marine  torts  resulting  in  the  death  of  persons 
injured,  a  State  statute  giving  a  right  of  action  in 
such  cases  to  the  personal  representatives  of  the 
deceased  constitutes  no  encroachment  upon  the  com- 
mercial power  of  Congress.® 

State  statutory  liens  enforceable  in  admiralty  state  statu- 

.        .  n  ^°^y  liens 

in  rem  when  the  lien  is  asserted  as  an  incident  of  a  for  supplies 

or  labor. 

maritime  debt  for  necessary  supplies  or  materials 
furnished,  or  for  repairs  or  labor  on  the  credit  of 
the  ship,  cannot  be  treated  as  burdens  upon  com- 
merce or  classed  with  laws  intended  to  interfere 
with  freedom  of  commercial  intercourse.^  In  John- 
son V.  Chicago,  etc,  Elevator  Co.^  the  validity  of  a 

7  Lord  V.  Goodall,  etc.,  Steamship  Co.,  (1880)  102  U.  S.  541. 

8/w  re  Garnett,  (1891)  141  U.  S.  1.  See  Providence,  etc..  Steam- 
ship Co.  V.  Hill  Mfg.  Co.,  (1883)   109  U.  S.  578. 

9  Sherlock  v.  Ailing,  (1876)  93  U.  S.  99. 

iThe  Lottawanna,  (1874)  21  Wall.  (U.  S.)  558;  The  Robert 
Dollar,  (1902)  115  Fed.  Rep.  218;  The  Del  Norte,  (1898)  90  Fed. 
Rep.  506. 

2  (1886)  119  U.  S.  388. 


222  REGULATION   OF    COMMERCE 

Chapter  State  statute  was  questioned  giving  a  lien  by  attach- 
'  ment  in  a  suit  in  personam  on  water  craft  used  in 
navigating  the  waters  of  the  State,  for  damages 
arising  from  injuries  done  to  persons  or  property 
through  negligence.  The  suit  was  brought  in  the 
State  court  to  recover  damage  to  a  warehouse  by 
the  negligent  towing  of  a  schooner,  and,  in  sustain- 
ing the  validity  of  the  statute,  the  court  said  that 
**  the  proceeding  to  enforce  the  lien,  in  this  case, 
was  not  such  a  regulation  of  commerce  among  the 
States  as  to  be  invalid,  because  an  interference  with 
the  exclusive  authority  of  Congress  to  regulate  such 
commerce,  any  more  than  regulations  by  a  State  of 
the  rates  of  wharfage  for  vessels,  and  of  remedies  to 
recover  wharfage,  not  amounting  to  a  duty  of  ton- 
nage, are  such  an  interference  because  the  vessels 
are  engaged  in  interstate  commerce." 

REGULATIONS  AFFECTING  SEAMEN. 

JSSauons  ^^-  Justice  Brcwcr,  speaking  for  the  court,  in 
(cctionSr  Patterson  v.  Bark  Eudora,^  said  that  '*  it  is  within 
the  power  of  Congress  to  protect  all  sailors  shipping 
in  our  ports  on  vessels  engaged  in  foreign  or  inter- 
state commerce,  whether  they  belong  to  citizens  of 
this  country  or  of  a  foreign  nation."  In  that  case 
it  was  held  that  an  Act  of  Congress  making  it  unlaw- 
ful to  pay  any  seaman  wages  in  advance,  making 
such  payment  a  misdemeanor,  and  in  terms  provid- 
ing that  such  payment  shall  not  absolve  the  vessel 
or  its  master  or  owner  from  full  payment  of  wages 
after  the  same  shall  have  been  actually  earned,  is 
valid  as  applied  to  contracts  of  sailors  for  services 
interstate  and  foreign."*  The  liberty  of  contract 
guaranteed  by  the  Constitution  does  not  extend  to 

»  (1903)  190  U.  S.  169. 

♦  Act  of  Congress  of  June  26,  1884,  c.  121,  §  10,  as  amended  by 


seamen. 


REGULATION   OF    COMMERCE  223 

such  contracts,  as,  said  the  learned  justice,  ^'  Con-    Chapter 
tracts  with  sailors  for  their  services  are,  as  we  have  ' 

seen,  exceptional  in  their  character,  and  may  be  sub-  constitu- 

'  ^  /  ./  tionalguar- 

jected  to  special  restrictions  for  the  purpose  of  uJertyof 
securing  the  full  and  safe  carrying  on  of  commerce  *=°'**~^- 
on  the  water.  Being  so  subject,  whenever  the  con- 
tract is  for  employment  in  commerce,  not  wholly 
within  the  State,  legislation  enforcing  such  restric- 
tions comes  within  the  domain  of  Congress,  which  is 
charged  with  the  duty  of  protecting  foreign  and 
interstate  commerce. ' '  ^ 

That  such  contracts  are  not  within  the  spirit  of  Requiring 

^  seamen  to 

constitutional  prohibitions  is  further  illustrated  by  contacts. 
the  case  of  Robertson  v.  Baldwin,^  in  which  Acts  of 
Congress,  in  so  far  as  they  required  seamen  to  carry 
out  contracts  contained  in  their  shipping  articles,'^ 
were  held  not  to  be  in  conflict  with  the  Thirteenth 
Amendment  of  the  Constitution,  forbidding  slavery 
and  involuntary  servitude.     The  federal  statute  im- 
posing a  penalty  for  harboring  or  secreting  seamen  ^  ^*;^°^'J|;, 
has  been  repealed,^  but  State  statutes  prohibiting  \f^^^^^^ 
aiding  or  enticing  seamen  to  desert  while  in  the 
waters  of  the  State,  have  been  held  to  be  valid, 
when  there  is  no  Act  of  Congress  on  the  subject.^ 
If  a  State  statute  should  prohibit  sailors  of  foreign 
vessels  from  loading  or  unloading  their  own  vessels, 
it  would  be  to  that  extent  invalid.^ 

the  Act  of  June  19,  1886,  c.  421,  §  3,  and  the  Act  of  December  21, 
1898,  c.  28,  §  24;  6  Fed.  Stat.  Annot.  871. 

5  See  also  Ex  p.  Pool,  ( 1821 )  2  Va.  Gas.  276. 

6  (1897)   165  U.  S.  275. 

7  Rev.   Stat.   U.   S.,    §§   4598   and  4599,   repealed  by  the  Act  of 
December  21,  1898,  c.  28,  §  25. 

8  Rev.  Stat.  U.  S.,  §  4601,  6  Fed.  Stat.  Annot.  918. 

9  Act  of  December  21,  1895,  c.  28,  §  25,  6  Fed.  Stat.  Annot.  870. 

1  Handel  v.  Chaplin,   (1900)    111  Ga.  800;  Ex  p.  Young,   (1900) 
36  Oregon  247. 

2  Cuban  Steamship  Co.  v.  Fitzpatrick,  (18.95)  66  Fed.  Rep.  63. 


CHAPTEE  XI. 

BRIDGES. 

Chapter    T^  RIDGES   Over   navigable   streams   which   are 

'        IJ     entirely  within  the  limits  of  a  State  are  of 

General  the  class  of  subjects   on  which  the   power 

rules. 

of  the  State  may  be  exercised  as  local  in  their 
nature/  and  by  concurrent  action  two  States  may 
bridge  waters  between  them.^  The  power  of  the 
States  is  subordinate  to  that  of  Congress,^  but  to 
render  the  action  of  a  State  invalid,  the  general 
government  must  directly  interfere.* 
Wheeling  The  first  cases  involving  the  power  of  Congress 

Cases.  and  of  the  States  were  the  Wheeling  Bridge  Cases.^ 
A  comparison  of  these  cases  with  more  recent  ones, 
recognizing  bridges  as  proper  subjects  of  local  legis- 
lation, subject  to  the  paramount  power  of  Congress, 
shows  how,  in  the  early  days  of  constitutional  con- 
struction, it  was  necessary  for  the  federal  Supreme 
Court  occasionally  to  explain  previous  decisions  in 

iCardwell  v.  American  Bridge  Co.,  (1885)  113  U.  S.  205; 
Escanaba,  etc.,  Transp.  Co.  v.  Chicago,  (1882)  107  U.  S.  678. 

2  Decker  v.  Baltimore,  etc.,  R.  Co.,  (1887)  30  Fed.  Rep.  723. 

sin  the  absence  of  action  by  Congress,  the  power  of  the  States 
to  regulate  gr  abate  is  plenary.  Navigable  Waters,  (1891)  20  Op. 
Atty.-Gen.  101;  Rhea  v.  Newport  News,  etc.,  R.  Co.,  (1892)  50  Fed. 
Rep.  16;  Green,  etc.,  River  Nav.  Co.  v.  Chesapeake,  etc.,  R.  Co., 
(1888)  88  Ky.  1;  State  v.  Leighton,  (1891)  83  Me.  419;  Talbot 
County  V.  Queen  Anne's  County,  (1878)  50  Md.  245;  Dover  v.  Ports- 
mouth  Bridge,  (1845)  17  N.  H.  200. 

♦  Escanaba,  etc.,  Transp.  Co.  v.  Chicago,  (1882)  107  U.  S.  678. 

» Pennsylvania  v.  Wheeling,  etc.,  Bridge  Co.,  (1851)  13  How, 
(U.  S.)  518,  (1855)  18  How.  (U.  S.)  421. 


BBGULATION   OF   COMMERCE  225 

a  manner  which  even  very  careful  investigation    Chapter 
would  consider  little  if  any  removed  from  an  atti-  ' 

tude  of  directly  overruling  them.  The  cases  were 
heard  upon  the  equity  side  of  the  court  in  the  exer- 
cise of  its  original  jurisdiction,  the  State  of  Penn- 
sylvania being  the  party  complainant.  That  State 
owned  certain  valuable  public  works,  canals  and  rail- 
ways, constructed  at  great  expense  as  channels  of 
commerce,  for  the  transportation  of  passengers  and 
goods,  from  which  a  large  revenue,  as  tolls,  was  re- 
ceived by  the  State.  The  works  terminated  on  the 
Ohio  river,  and  were  constructed  with  direct  refer- 
ence to  its  free  navigation.  The  bills  filed  by  the 
State  charged  the  Wheeling  and  Belmont  Bridge 
Company,  a  corporation  chartered  by  the  State  of 
Virginia,  with  having  constructed  its  bridge  so  low 
as  to  cause  material  obstruction  to  the  commerce  of 
the  Ohio  river,  and  especially  injurious  to  the  lines 
of  improvement  in  the  construction  of  which  the 
State  had  expended  several  millions  of  dollars. 
Upon  the  final  hearing  in  the  first  case,  the  court 
adopted  the  report  of  the  commissioner,  based  upon 
a  mass  of  testimony,  and  found  as  a  fact  that  the 
bridge  was  an  obstruction  to  navigation,  that  the 
State  of  Pennsylvania  was  entitled  to  relief,  and 
decreed  that  the  obstruction  be  removed,  either  by 
elevating  the  bridge  to  a  height  designated  or  by 
abatement.  In  the  course  of  the  opinion,  written 
by  Mr.  Justice  McLean,  to  the  objection  that  there 
was  no  Act  of  Congress  prohibiting  obstructions  on 
the  Ohio  river,  the  court  said:  '^  Congress  have 
not  declared  in  terms  that  a  State,  by  the  con- 
struction of  bridges,  or  otherwise,  shall  not  obstruct 
the  navigation  of  the  Ohio,  but  they  have  regu- 
lated navigation  upon^if,  as  before  remarked,  by 

15 


226  EEGULATION   OF   COMMERCE 

^caiapter    licensing  vessels,  establishing  ports  of  entry,  im- 
__  posing  duties  upon  masters  and  other  officers  of 

boats,  and  inflicting  severe  penalties  for  neglect  of 
those  duties,  by  which  damage  to  life  or  prop- 
erty has  resulted.  And  they  have  expressly  sanc- 
tioned the  compact  made  by  Virginia  with  Ken- 
tucky, at  the  time  of  its  admission  into  the  Union, 
'  that  the  use  and  navigation  of  the  River  Ohio,  so 
far  as  the  territory  of  the  proposed  State,  or  the 
territory  that  shall  remain  within  the  limits  of  this 
Commonwealth  lies  thereon,  shall  be  free  and  com- 
mon to  the  citizens  of  the  United  States.'  ''  But 
this  is  no  more  than  has  been  done  by  Congress 
with  reference  to  the  other  navigable  waters  of  the 
United  States,  and  the  power  of  Congress  in  the 
particular  matter  under  consideration,  as  was  said 
by  Chief  Justice  Taney,  in  a  dissenting  opinion,  had 
not  been  exercised.  Soon  after  the  rendition  of  this 
decree  an  Act  of  Congress  was  passed  declaring  the 
bridge  to  be  a  lawful  structure  in  its  then  position 
and  elevation.  Shortly  thereafter  the  bridge  was 
blown  down  by  a  violent  storm,  and  the  company 
was  preparing  to  rebuild  it  according  to  the  original 
plan,  when  the  State  moved  for  a  temporary  injunc- 
^tion  before  one  of  the  justices  of  the  Supreme  Court, 
•which  was  granted.  The  court  held  upon  the  final 
hearing  in  this  case  that  as  an  Act  of  Congress  had 
declared  the  bridge  to  be  a  lawful  structure,  it  could 
not  be  considered  an  obstruction  to  navigation  in 
^contemplation  of  law,  although  it  still  might  be  so 
in  fact,  and  dissolved  the  injunction.  In  the  course 
of  the  opinion  in  this  second  case,  Mr.  Justice  Nelson, 
referring  to  the  first  case,  said:  **  It  was  claimed, 
however,  that  Congress  had  acted  upon  the  subject 
and  had  regulated  the  navigation  of  the  Ohio  river, 


REGULATION   OF   COMMERCE  227 

and  had  thereby  secured  to  the  public,  by  virtue  of    Chapter 
its  authority,  the  free  and  unobstructed  use  of  the  ' 

same ;  and  that  the  erection  of  the  bridge,  so  far  as 
it  interfered  with  the  enjoyment  of  this  use,  was 
inconsistent  with  and  in  violation  of  the  Acts  of 
Congress,  and  destructive  of  the  right  derived  under 
them;  and  that,  to  the  extent  of  this  interference 
with  the  free  navigation  of  the  river,  the  act  of  the 
legislature  of  Virginia  afforded  no  authority  or 
justification.  It  was  in  conflict  with  the  Acts  of 
Congress,  which  were  the  paramount  law.'*  But  it 
may  be  safely  said  that  no  one  can  read  the  opinion 
in  the  first  case,  apart  from  the  subsequent  judicial 
explanations,  without  concluding  that  the  court  put 
its  decision  upon  the  broad  ground  that  it  possessed 
an  independent  jurisdiction  in  equity  to  declare  a 
bridge  across  a  navigable  stream,  the  erection  of 
which  had  not  been  authorized  by  Congress,  to  be 
an  obstruction  to  navigation,  and  as  such  to  be  a 
public  nuisance,  and  to  order  its  abatement.  The 
court  has  never  since  assumed,  and  perhaps  has  not 
had  occasion  to  assume,  this  position,  and  it  is  prob- 
able, in  the  case  of  an  obstructing  structure  erected 
by  authority  of  a  State,  but  without  authority  of 
Congress,  that  the  court  would  await  positive 
action  by  the  political  department  of  the  federal 
government. 

The  paramount  authority  being  in  Congress,  its  Federal  au- 
sovereign   powers   may  be   exercised,   directly   or  ^°g^^" 
through  a  corporation  created  for  that  object,  to 
construct  bridges  for  the  accommodation  of  inter- 
state commerce  by  land,  without  the  consent  of  the 
State,^  and  it  may  authorize  the  erection  of  neces- 

«Luxton  V.  North  River  Bridge  Co.,  (1894)  153  U.  S.  525; 
Pennsylvania  R.  Co.  v.  Baltimore,  etc.,  R.  Co.,  (1888)  37  Fed.  Rep. 
129;  Stockton  v.  Baltimore,  etc.,  R.  Co.,  (1887)  32  Fed.  Rep.  9. 


228 


REGULATION   OF    COMMERCE 


Chapter 
XI. 


Power  to 
declare 
bridges 
lawful  or 
unlawful. 


Power  of 
Congress 
to  require 
removal  — 
Taking  of 
private 
property. 


sary  piers  upon  lands  under  water."^  When  Con- 
gress chooses  to  act  it  is  not  concluded  by  anything 
that  the  States,  or  individuals  by  their  authority, 
have  done. 

Congress  may  declare  certain  bridges  to  be  law- 
ful ^  or  unlawful  structures,^  and  abate  any  erections 
that  may  have  been  made,  remove  offending  bridges, 
and  punish  those  who  shall  thereafter  erect  them.^ 
In  so  doing  Congress  determines  between  the  rival 
and  conflicting  claims  of  those  who  use  the  bridge 
as  a  highway,  and  those  who  use  the  river  as  a  high- 
way, which  must  yield  to  the  other,  and  how  f  ar.^ 

Those  who  act  on  State  authority  alone  neces- 
sarily assume  all  the  risks  of  legitimate  con- 
gressional interference.  When  Congress  has  not 
authorized  the  erection  of  a  bridge,  but  a  State  has, 
the  action  of  Congress  in  requiring  its  removal  can- 
not be  regarded  as  a  **  taking  of  private  property  '^ 
within  the  meaning  of  the  Fifth  Amendment.^  And 
when  congressional  permission  is  given  upon  con- 

7  Stockton  V.  Baltimore,  etc.,  R.  Co.,  (1887)  32  Fed.  Rep.  9; 
Decker  v.  Baltimore,  etc.,  R.  Co.,   (1887)   30  Fed.  Rep.  723. 

8  Clinton  Bridge,  (1870)  10  Wall.  (U.  S.)  454.  Though  it  in 
fact  does  impede  steamboat  navigation.  Pennsylvania  v.  Wheeling, 
etc..  Bridge  Co.,   (1855)    18  How.   (U.  S.)   421. 

When  the  erection  of  a  bridge  is  sanctioned  by  Congress,  it  is 
not  a  lawful  structure  unless  as  built  it  conforms  tp  the  terms  and 
limitations  of  the  authority.  Pennsylvania  R.  Co.  v.  Baltimore,  etc., 
R.  Co.,  (1888)  37  Fed.  Rep.  129. 

9  When  Congress  has  declared  a  bridge  to  be  an  unlawful  struc- 
ture, no  legislation  of  a  State  can  make  it  lawful.  Newport,  etc., 
Bridge  Co.  v.  U.  S.,  ( 1881 )  105  U.  S.  470.  See  also  U.  S.  v.  Keokuk, 
etc.,  Bridge  Co.,  (1891)  45  Fed.  Rep.  178;  Decker  v.  Baltimore,  etc., 
R.  Co.,  (1887)  30  Fed.  Rep.  723. 

1  Willamette  Iron  Bridge  Co.  v.  Hatch,  (1888)  125  U.  S.  1;  Gil- 
man  V.  Philadelphia,  (1865)  3  Wall.  (U.  S.)  713. 

2  Winifrede  Coal  Co.  v.  Central  R.,  etc.,  Co.,  (1890)  11  Ohio  Dec. 
(Reprint)  35,  24  Cine.  L.  Bui.  173. 

8  Navigable  Waters,  (1896)  21  Op.  Atty.-Gen.  430. 


inter- 
ruption to 
narigation. 


REGULATION   OF    COMMERCE  229 

dition  that  it  may  be  revoked  at  any  time  if  the    Chapter 
bridge  shall  be  f omid  detrimental  to  navigation,  ' 

the  existence  of  the  franchise  is  dependent  upon 
the  will  of  Congress,  and  the  grantee  assumes  all  the 
risks  of  loss  arising  from  any  exercise  of  the  power 
which  Congress  has  seen  fit  to  reserve.* 

The  action  of  Congress  in  declaring  a  bridge  to  Preference 
be  a  lawful  structure,  whereby  it  is  claimed  the  b"\uSor- 
interruption  of  the  navigation  of  vessels  engaged  in  J^jj^g, 
commerce,  and  the  delay  and  expense  arising  there- 
from, stop  the  trade  and  business  at  one  port  or 
divert  the  same  in  some  other  direction  or  channel 
of  commerce,  is  not  a  violation  of  the  prohibition 
contained  in  Article  I,  section  9,  of  the  Constitution, 
declaring  that  ^*  no  preference  shall  be  given  by 
any  regulation  of  commerce  or  revenue  to  the  ports 
of  one  State  over  those  of  another. ' '  ^ 

The  Act  of  Congress  of  September  19,  1890,  ch.  f^^^'^^^l 
907,  conferred  on  the  Secretary  of  War,  when  he  has  state  action 
reason  to  believe  that  any  bridge  over  any  navigable 
waterway  is  an  unreasonable  obstruction  to  free 
navigation,  authority  to  give  notice  to  the  owners 
so  to  alter  the  same  as  to  render  navigation  reason- 
ably free.  In  Lake  Shore,  etc.,  R.  Co.  v.  Ohio  ^  it 
was  held  that  the  statute  does  not  deprive  the  States 
of  authority  to  grant  power  to  bridge  such  streams, 
or  to  render  lawful  all  bridges  previously  built  with- 

4  Newport,  etc.,  Bridge  Co.  v.  V.  S.,  (1881)  105  U.  S.  470. 

5  Pennsylvania  v.  Wheeling,  etc..  Bridge  Co.,  (1855)  18  How. 
(U.  S.)  421. 

Though  a  port  of  entry  has  been  created  by  Congress  above  a 
bridge,  a  court  of  the  United  States  is  without  authority  to  restrain 
its  erection,  when  the  bridge  has  been  authorized  by  a  State  over  a 
navigable  river  lying  wholly  within  the  limits  of  the  State.  Milnor 
V.  New  Jersey  R.  Co.,  (1857)  3  Wall.  (U.  S.)  appendix,  782,  17  Fed. 
Cas.  No.  9620. 

6  (1897)    165  U.  S.  365. 


230  REGULATION   OF   COMMERCE 

Chapter  out  authority,  but  simply  creates  an  additional  and 
'  cumulative  remedy  to  prevent  such  structures, 
although  authorized  by  the  States,  from  interfering 
with  commerce.  When  a  bridge  is  constructed  in 
accordance  with  both  State  and  federal  require- 
ments, it  must  be  deemed  a  lawful  structure  and 
cannot  be  treated  as  a  public  nuisance^ 
Regruiat-  Congress  undoubtedly  has  power  to  regulate  the 

clT^fSi  ^^^^^  ^^  bridges  used  in  interstate  transportation. 
This  right  has  even  been  asserted  and  sustained  in 
the  case  of  a  bridge  between  one  of  the  United  States 
and  a  foreign  country.  A  corporation  was  organ- 
ized pursuant  to  concurrent  legislation  on  the  part 
of  New  York  State  and  of  Canada,  authoriz- 
ing a  New  York  corporation  and  a  Canadian  cor- 
poration to  consolidate  and  enjoy  the  franchises 
conferred  by  the  legislation  of  the  respective  sov- 
ereignties. Under  these  acts  the  corporation  was 
authorized  to  build  and  maintain  a  bridge  across 
the  Niagara  river  for  the  passage  of  persons  on 
foot  and  in  carriages,  and  for  the  passage  of  railway 
trains,  and  to  fix  and  demand  tolls  for  the  use  of 
the  bridge  and  its  approaches.  As  this  river  is  a 
public  navigable  stream,  it  has  been  held  that  Con- 
gress had  power  to  prescribe  the  compensation 
which  the  bridge  company  might  charge  for  the  use 
of  its  property,  notwithstanding  that  by  the  State 
and  Canadian  legislation  no  limitation  upon  the 
rates  of  toll  to  be  charged  for  the  use  of  the  bridge 
by  railway  trains  was  imposed,  but  the  directors 
were  empowered  expressly  or  by  implication  to 
charge  such  tolls  as  they  might  deem  expedient.^ 

T  Miller  v.  New  York,  (1883)  109  U.  S.  385. 

«  Canada  Southern  R.  Co.  v.  International  Bridge  Co.,   ( 1881 )   8 
Fed.  Rep.  190. 


BEGULATION   OF   COMMEBCE  231 

A  State  has  power  to  regulate  the  rates  of  toll    Chapter^ 
on  bridges  over  navigable  waters  wholly  within  the  ' 

State,  subject  to  the  paramount  authority  of  Con-  l^^^^ 
gress,  but  in  the  case  of  a  bridge  connecting  two  [X'*'* 
States,  such  a  power  does  not  rest  in  one  of  the 
adjoining  States,  though  it  would  seem  that  they 
have  the  power  by  reciprocal  action  to  fix  upon  a 
tariff  which  shall  be  operative  upon  both  sides  of 
the  river,  always,  of  course,  subject  to  the  same 
paramount  authority.^ 

»  Covington,  etc.,  Bridge  Co.  v.  Kentucky,  (1894)  154  U.  S.  204. 


CHAPTER  Xn. 
SUNDEY  SUBJECTS  OF  REGULATION. 

WABEHOUSES    AND    ELEVATOES. 


XII. 


T 


Chapter    ^  I "  HE  regulation  of  warehouses  and  elevators  is  a 

X" 

local  regu- 


matter  of  domestic  concern,  as  the  business 
Subject  to  is  carried  on  within  the  limits  of  the  State, 

lations^^"  Incidentally  they  may  become  connected  with  inter- 
state commerce,  but  not  necessarily  so,  and  until  Con- 
gress acts  in  reference  to  their  interstate  relations, 
the  State  may  exercise  all  the  powers  of  govern- 
ment over  them,  even  though  in  so  doing  it  may  indi- 
rectly operate  upon  commerce  outside  its  immediate 
jurisdiction.  An  Illinois  statute  prescribing  the 
maximum  rates  for  storing  and  handling  grain  in 
public  warehouses,^  and  a  North  Dakota  statute  de- 
claring elevators  to  be  public  warehouses  and  regu- 
lating their  charges,^  have  been  held  not  to  be 
invalid  as  regulations  of  commerce.  In  Budd  v. 
New  YorJc,^  holding  that  a  New  York  statute  regu- 
lating the  charges  of  floating  and  stationary  eleva- 
tors was  a  regulation  of  commerce  only  on  the 
waters  of  the  State  of  New  York,  the  court  said: 
**  It  is  of  the  same  character  with  navigation  laws 
in  respect  to  navigation  within  the  State  and  laws 
regulating  wharfage  rates  within  the  State,  and 
other  kindred  laws. " 

iMunn  V.  Illinois,  (1876)  94  U.  S.  113. 

2  Brass  v.  North  Dakota,  (1894)  163  U.  S.  391. 

«  (1892)  143  U.  S.  517. 


REGULATION   OF   COMMEBCB  233 

But  when  a  grain  elevator  company  is  engaged    Chapter 

in  the  business  of  exporting  grain,  and  stops  cars  in  '_^ 

transit  to  put  the  grain  through  the  elevator  for  the  Regulation 
purposes  of  cleaning  and  preparing  it  for  further  f^g^^ 
transportation,  an  order  of  a  State  railroad  com-  {[ons?*^" 
mission  which  in  effect  directs  that  grain  purchased  " 
by  the  elevator  company  shall  move  through  the 
place  where  the  elevator  is  located,  under  seal  in  the 
cars  in  which  it  reaches  that  point,  or  shall  be  trans- 
ferred by  the  railroad  company  to  a  connecting 
carrier  without  being  stopped  or  treated  at  the  ele- 
vator, relates  to  and  affects  interstate  or  foreign 
shipments   of  grain,  makes  it  impossible  for  the 
elevator  company  to  fulfil  its  contract  for  the  ex- 
portation of  grain,  and  has  been  said  to  be  invalid.* 

GAME   AND   FISH   LAWS. 

A  Connecticut  statute  ^  pro^dded  that  * '  every 
person  who  shall  buy,  sell,  expose  for  sale,  or  have 
in  his  possession  for  any  purpose,  or  who  shall  hunt, 
pursue,  kill,  destroy,  or  attempt  to  kill  any  wood- 
cock, quail,  ruffled  grouse,  called  partridge,  or  gray 
squirrel,  between  the  first  day  of  January  and  the 
first  day  of  October,  the  killing  or  having  in  pos- 
session of  each  bird  or  squirrel  to  be  deemed  a  sepa- 
rate offense,    .     .     .     shall  be  fined  not  more  than 

4  J.  Rosenbaum  Grain  Co.  v.  Chicago,  etc.,  R.  Co.,  (1903)  130 
Fed.  Rep.  46. 

A  corporation  owned  a  grain  elevator  and  freight  warehouse  and 
several  lines  of  railroad  tracks  which  were  used  to  afford  facilities 
for  access  to  its  elevator  and  warehouse  by  cars  owned  by  other 
companies.  Its  entire  business  consisted  in  loading,  unloading,  and 
storing  grain  and  other  freights  which  were  the  subjects  of  inter- 
state or  foreign  transportation;  no  local  freights  were  handled.  It 
was  held  that  the  business  of  the  corporation  was  of  an  interstate 
character.     People  v.  Miller,  (1904)   178  N.  Y.  194. 

5  Gen.  Stat.  Com.,  §§  2530  and  2546,  Revision  of  1888. 


234 


REGULATION    OF    COMMERCE 


Establish- 
ing: »■  close 
season  for 


C^ter  twenty-five  dollars;  "  and  that  ^*  no  person  shall  at 
'  any  time  kill  any  woodcock,  ruffled  grouse  or  quail 
for  the  purpose  of  conveying  the  same  beyond  the 
limits  of  this  State;  or  shall  transport  or  have  in 
possession,  with  intent  to  procure  the  transporta- 
tion beyond  said  limits,  any  of  such  birds  killed 
within  this  State.  The  reception  by  any  person 
within  this  State  of  any  such  bird  or  birds  for  ship- 
ment to  a  point  without  the  State  shall  be  prima 
facie  evidence  that  said  bird  or  birds  were  killed 
within  the  State  for  the  purpose  of  carrying  the 
same  beyond  its  limits."  In  State  v.  Geer^  the 
State  Supreme  Court  held,  in  interpreting  the  stat- 
ute by  the  light  afforded  by  previous  enactments, 
that  one  of  its  objects  was  to  forbid  the  killing  of 
birds  within  the  State  during  the  open  season  for  the 
purpose  of  transporting  them  beyond  the  State,  and 
also  additionally  as  a  distinct  offense  to  punish  the 
having  in  possession,  for  the  purpose  of  transporta- 
tion beyond  the  State,  birds  lawfully  killed  within 
the  State.  It  then  decided  that  the  statute,  in 
creating  this  latter  offense,  did  not  violate  the 
interstate  commerce  clause. 

In  affirming  the  judgment  of  the  State  court,  the 
Supreme  Court  of  the  United  States  "^  said  that  aside 
from  the  authority  of  the  State,  derived  from  the 
common  ownership  of  game  and  the  trust  for  the 
benefit  of  its  people  which  the  State  exercises  in 
relation  thereto,  the  right  to  preserve  game  pro- 
ceeds from  the  undoubted  existence  in  the  State  of 
a  police  power  to  that  end,  which  may  be  none  the 
less  efficiently  called  into  play  because  by  doing  so 
interstate  commerce  may  be  remotely  and  indirectly 

•  (1891)  61  Conn.  144. 

TGeer  r.  Connecticut,  (1896)  161  U.  S.  519. 


Common 
ownership 
of  game. 


REGULATION   OF   COMMERCE  235 

affected;  such  power  flowing  from  the  duty  of  the    Chapter 
State  to  preserve  for  its  people  a  valuable  food  ' 

supply,  which  belongs  in  common  to  all  the  people  A*^*^j««j'- 
of  the  State,  which  can  only  become  the  subject  of  p°Jj=^ 
ownership  in  a  qualified  way,  and  which  can  never 
be  the  object  of  commerce  except  with  the  consent 
of  the  State  and  subject  to  the  conditions  which  it 
may  deem  best  to  impose  for  the  public  good.^ 

Fisheries  within  the  territorial  jurisdiction  of  a  fJ^ioS^S 
State  are  subject  to  State  regulation  and  protection.  fi*^«""- 
In  holding  a  Massachusetts  statute,  passed  for  the 
protection  of  the  fisheries  **  within  the  jurisdiction 
of  this  commonwealth  ''  valid,  Mr.  Justice  Blatch- 
ford,  in  writing  the  opinion  of  the  court  in  Man- 
chester  V.   Massachusetts,^    said   that   the    statute 

8  A  state  may  prohibit  the  exportation  of  game.  Organ  v.  State, 
(1892)  56  Ark.  267;  American  Express  Co.  v.  People,  (1890)  133  111. 
649.     Contra,  State  v.  Saunders,  ( 1877 )   19  Kan.  127. 

In  In  re  Davenport,  (1900)  102  Fed.  Rep.  540,  it  was  held  that 
importation  of  game  from  another  State  cannot  be  prohibited.  But 
in  Stevens  v.  State,  (1899)  89  Md.  669,  the  court  said  that  the  total 
prohibition  of  having  game,  from  whatever  source  derived,  in  posses- 
sion during  the  closed  season,  is  a  reasonable  if  not  necessary  means 
of  protecting  the  domestic  game  of  the  State  making  the  prohibition. 
To  the  same  effect  see  Magner  v.  People,  (1881)  97  111.  320;  People 
V.  O'Neil,  (1896)  110  Mich.  324;  State  v.  Judy,  (1879)  7  Mo.  App. 
624;  Phelps  v.  Racey,   (1875)   60  N.  Y.  10. 

In  Ex  p.  Maier,  (1894)  103  Cal.  476,  the  court  held  that  such  a 
statute  covered  a  sale  of  deer  meat  from  an  animal  imported  into 
the  State,  as  the  original  package  had  been  broken,  saying: 
"  Whether  petitioner  could  have  sold  the  meat  as  an  entire  carcass 
is  a  question  which  does  not  confront  us,  and  which  it  is  not,  there- 
fore, necessary  to  determine." 

In  People  v.  Hesterberg,  (1906)  184  N.  Y.  126,  it  was  held  that 
under  the  Act  of  Congress  of  May  25,  1900,  c.  553,  §  5,  3  Fed.  Stat. 
Annot.  152,  providing  that  game  animals  or  birds,  or  the  bodies 
of  such,  imported  into  a  State,  shall  be  subject  to  the  operation  of 
the  laws  enacted  in  the  exercise  of  its  police  powers,  a  State  may 
prohibit  the  importation  or  possession  of  the  bodies  of  game  animals 
or  birds  during  the  close  season. 

»  (1891)   139  U.  S.  240,  affirming  (1890)  152  Mass.  230. 


236 


REGULATION   OF   COMMERCE 


Chapter 


Swimming 
Ssh. 


Henhaden 
ish. 


^*  was  evidently  passed  for  the  preservation  of  the 
fish,  and  makes  no  discrimination  in  favor  of  citi- 
zens of  Massachusetts  and  against  citizens  of  other 
States.  If  there  be  a  liberty  of  fishing  for  swim- 
ming fish  in  the  navigable  waters  of  the  United 
States  common  to  the  inhabitants  or  the  citizens  of 
the  United  States,  npon  which  we  express  no  opin- 
ion, the  statute  may  well  be  considered  as  an  im- 
partial and  reasonable  regulation  of  this  liberty; 
and  the  subject  is  one  whir»,h  a  State  may  well  be 
permitted  to  regulate  within  its  territory,  in  the 
absence  of  any  regulation  by  the  United  States. 
The  preservation  of  fish,  even  although  they  are  not 
nsed  as  food  for  human  beings,  but  as  food  for 
other  fish  which  are  so  used,  is  for  the  common 
benefit ;  and  we  are  of  opinion  that  the  statute  is  not 
repugnant  to  the  Constitution  and  laws  of  the  United 
States.  .  .  .  We  do  not  consider  the  question 
whether  or  not  Congress  would  have  the  right  to 
control  the  menhaden  fisheries  which  the  statute  of 
Massachusetts  assumes  to  control;  but  we  mean  to 
say  only  that,  as  the  right  of  control  exists  in  the 
State  in  the  absence  of  the  affirmative  action  of 
Congress  taking  such  control,  the  fact  that  Congress 
has  never  assumed  the  control  of  such  fisheries  is 
persuasive  evidence  that  the  right  to  control  them 
still  remains  in  the  State."  And  so  the  question 
was  left  open  as  to  the  right  of  Congress  to  control 
fisheries  in  the  bays,  inlets,  harbors,  and  ports  of 
the  United  States.^ 


1  A  State  may  prohibit  the  taking  of  fish  during  certain  seasons, 
though  they  may  be  taken  with  the  purpose  to  ship  them  to  another 
State.  Ex  p.  Fritz,  (1905)  86  Miss.  210.  And  a  State  may  make  it 
unlawful  to  have  certain  fish  in  possession  during  the  close  season, 
though  such  fish  were  taken  in  foreign  waters.  People  v.  Lassen, 
(Mich.  1906)   106  N.  W.  Rep.  143.     See  People  v.  Buffalo  Fish  Co., 


EEGULATION   OF    COMMEECE  237 

A  State  may  protect  the  growth  of  oysters  in    ^^f^^ 
the  waters  of  the  State  by  prohibiting  the  use  of  ' 

]3articular  instruments  in  dredging  for  them.  This  gj^\«  p*"^ 
power  results  from  the  State  ownership  of  the  soil,  cSure. 
from  the  legislative  jurisdiction  of  the  State  over 
it,  and  from  the  duty  to  preserve  unimpaired  those 
public  uses  for  which  the  soil  is  held.  It  is  within 
the  power  of  the  State  to  authorize  the  seizure,, 
detention,  and  forfeiture  of  a  vessel  enrolled  and 
licensed  for  the  coasting  trade  of  the  United  States, 
for  a  disobedience  by  those  on  board  of  the  com- 
mands of  such  a  law.2  License  fees  may  be  exacted 
of  those  engaged  in  the  business  of  planting,  grow- 
ing, and  taking  oysters.^  And  the  citizens  of  other 
States  can  be  prohibited  from  planting  oysters  in  a 
stream  in  that  State  where  the  tide  ebbs  and  flows, 
when  its  own  citizens  have  that  privilege.  As  the 
State  owns  the  land  under  water  adapted  to  the 
propagation  and  improvement  of  oysters,  it  may 
grant  the  exclusive  use  of  it  for  that  purpose  to  its 
own  citizens.  *  *  There  is  here  no  question  of  trans- 
portation or  exchange  of  commodities,  but  only  of 
cultivation  and  production.  Commerce  has  nothing 
to  do  with  land  while  producing,  but  only  with  the 
product  after  it  has  become  the  subject  of  trade. ' '  * 

(1900)  164  N.  Y.  93,  wherein  the  majority  of  the  court  assented  to 
the  position  that  the  statute  was  applicable  only  to  fish  taken  within 
the  State. 

2  Smith  v.  Maryland,  (1855)  18  How.  (U.  S.)  71.  See  also  Cor- 
field  t*.  Coryell,  (1823)  4  Wash.  (U.  S.)  371,  6  Fed.  Cas.  No.  3230, 
that  a  State  may  prohibit  the  taking  of  oysters  at  certain  times 
and  with  destructive  instruments. 

3Di^  V.  Lloyd,  (1888)  36  Fed.  Rep.  651;  State  v.  Corson,  (1901) 
67  N.  J.  L.  178;  Johnson  v.  Loper,  (1884)  46  N.  J.  L.  321;  Haney 
V.  Compton,  (1873)  36  N.  J.  L.  507. 

^Per  Chief  Justice  Waite,  in  McCready  v.  Virginia,  (1876)  94 
U.  S.  391.  See  also  State  r.  Harrub,  (1891)  95  Ala.  176;  State  v. 
Medbury,   (1855)   3  R.  I.  138. 


238  REGULATION   OF   COMMERCE 

Chapter 
XII.  ADMISSION    AND    EXCLUSION    OF   ALIENS. 

p^^ary^  III  the  Japanese  Immigrant  Case  ^  Mr.  Justice 

Congress.  Harlan  said:  **  That  Congress  may  exclude  aliens 
of  a  particular  race  from  the  United  States;  pre- 
scribe the  terms  and  conditions  upon  which  certain 
classes  of  aliens  may  come  to  this  country;  estab- 
lish regulations  for  sending  out  of  the  country  such 
aliens  as  come  here  in  violation  of  law ;  and  commit 
the  enforcement  of  such  provisions,  conditions,  and 
regulations  exclusively  to  executive  officers,  without 
judicial  intervention,  are  principles  firmly  estab- 
lished by  the  decisions  of  this  court. ' '  ^  Congress 
may  exclude  some  and  admit  others,  and  the  reasons 
for  its  discrimination  are  not  open  to  challenge  in  the 
courts,  and  it  has  the  right  to  make  the  exclusion 
effective  by  punishing  those  who  assist  in  intro- 
ducing, or  attempting  to  introduce,  aliens  in  viola- 
tion of  its  provisions.^  The  Act  of  Congress  of 
March  3,  1903,  declaring  that  the  following,  among 
others,  shall  be  excluded  from  admission  into  the 
United  States:  **  anarchists,  or  persons  who  be- 
lieve in  or  advocate  the  overthrow  by  force  or 
violence  of  the  government  of  the  United  States  or 
of  all  governments  or  of  all  forms  of  law,  or  the 

e  (1903)   189  U.  S.  86. 

«  See  also  Lem  Moon  Sing  v.  U.  S.,  (1895)  158  U.  S.  538. 

It  is  an  accepted  maxim  of  international  law  that  every  sovereign 
nation  has  the  power,  as  inherent  in  sovereignty,  and  essential  to 
self-preservation,  to  forbid  the  entrance  of  foreigners  within  its 
dominions,  or  to  admit  them  only  in  such  cases  and  upon  such  con- 
ditions as  it  may  see  fit  to  prescribe.  Nishimura  Ekiu  v.  U.  S., 
(1892)  142  U.  S.  651.  See  also  Wong  Wing  v.  U.  S.,  (1896)  163 
U.  S.  228;  Fong  Yue  Ting  v.  U.  S.,  (1893)  149  U.  S.  698;  Chinese 
Exclusion  Case,  (1889)  130  U.  S.  581;  In  re  Florio,  (1890)  43  Fed. 
Rep.  114;  U.  S.  v.  Craig,  (1886)  28  Fed.  Rep.  795. 

»Lec8  V.  U.  S.,  (1893)   160  U.  S.  476. 


KEGULATION   OF   COMMERCE  239 

assassination  of  public  officials, ' '  is  not  open  to  con-    copter 
stitutional  objection.^  ' 

An  Act  of  Congress  ^  provided :     *  *  That  there  Head 

*-'  -•■  money  tax 

shall  be  levied,  collected,  and  paid  a  duty  of  fifty  p^^JJers. 
cents  for  each  and  every  passenger,  not  a  citizen  of 
the  United  States,  who  shall  come  by  steam  or  sail 
vessel  from  a  foreign  port  to  any  port  within  the 
United  States.*'  To  the  objection  that  the  statute 
was  in  violation  of  the  first  clause  of  section  8  of 
Article  I  of  the  United  States  Constitution,  pro- 
viding that  ^^  the  Congress  shall  have  power  to 
lay  and  collect  taxes,  duties,  imposts,  and  excises,  to 
pay  the  debts  and  provide  for  the  common  defense 
and  general  welfare  of  the  United  States;  but 
all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States,"  the  Supreme  Court 
said :  *  *  But  the  true  answer  to  all  these  objections  is 
that  the  power  exercised  in  this  instance  is  not  the 
taxing  power.  The  burden  imposed  on  the  ship 
owner  by  this  statute  is  the  mere  incident  of  the 
regulation  of  commerce  —  of  that  branch  of  foreign 
commerce  which  is  involved  in  immigration. ' '  ^  And 
even  if  such  a  statute  violates  provisions  contained 
in  prior  treaties  of  the  United  States  with  friendly 
nations,  the  statute  must  prevail  in  all  the  judicial 
courts  of  this  country.^ 

The  right  to  expel  or  deport  foreigners  who  have  Power  to 

^  ^  ^  ^  expel  or  de- 

not  been  naturalized  nor  taken  any  steps  towards  ?<>«  aliens. 
becoming  citizens  of  this  country  is  as  absolute  and 

8U.  S.  V.  Williams,  (1904)  194  U.  S.  279. 

0  Act  of  August  3,  1882,  3  Fed.  Stat.  Annot.  294.  By  the  Act  of 
August  18,  1894,  c.  301,  3  Fed.  Stat.  Annot.  295,  the  amount  of  the 
head  money  was  increased  to  one  dollar. 

^Per  Mr.  Justice  Miller,  in  Head  Money  Cases,  (1884)  112  U.  S. 
580.     See  also  Thingvalla  Line  v.  U.  S.,  (1889)  24  Ct.  CI.  255. 

2  See  Chinese  Exclusion  Case,  (1889)  130  U.  S.  581. 


240  REGULATION   OF   COMMERCE 

Chapter    unqualified  as  the  right  to  prohibit  and  prevent  their 

'       entrance  into  the  country.^ 
Personal  But  in  exercising  the  power  to  deport  aliens 

by^t£"con-  found  to  be  unlawfully  within  the  United  States,  the 
IppSie  personal  rights  guaranteed  by  the  Constitution  can- 
^  *  '^^.  not  be  violated.  Section  four,  chapter  sixty,  of  the 
Act  of  Congress  of  May  5,  1892,  provided:  ^'  That 
any  such  Chinese  person  or  person  of  Chinese 
descent  convicted  and  adjudged  to  be  not  lawfully 
entitled  to  be  and  remain  in  the  United  States  shall 
be  imprisoned  at  hard  labor  for  a  period  of  not 
exceeding  one  year,  and  thereafter  removed  from 
the  United  States,  as  hereinbefore  provided/'  And 
in  a  previous  section  of  the  act  a  summary  hearing 
is  provided  for  before  a  justice,  judge,  or  commis- 
sioner. In  a  case  in  which  a  commissioner  of  a 
Circuit  Court  for  the  United  States  found  that  cer- 
tain Chinese  persons  were  unlawfully  within  the 
United  States  and  not  entitled  to  remain  within  the 
same,  and  he  adjudged  that  they  be  imprisoned  at 
hard  labor  at  and  in  the  Detroit  house  of  correction 
for  a  period  of  sixty  days  from  and  including  the 
day  of  commitment,  and  that  at  the  expiration  of 
said  time  they  be  removed  from  the  United  States 
to  China,  it  was  objected  that  the  statute  inflicted 
an  infamous  punishment  and  hence  conflicted  with 
Fifth  and  the  Fifth  and  Sixth  Amendments  of  the  Constitu- 
Amend-  tiou,  wMch  dcclaro  that  no  person  shall  be  held  to 
answer  for  a  capital  or  otherwise  infamous  crime 
unless  on  a  presentment  or  indictment  of  a  grand 
jury,  and  that  in  all  criminal  prosecutions  the 
accused  shall  enjoy  the  right  to  a  speedy  and  public 
trial  by  an  impartial  jury  of  the  State  and  district 
wherein  the  crime  shall  have  been  committed.     The 

8  Fong  Yue  Ting  v.  U.  S.,  (1893)   149  U.  S.  698. 


REGULATION    OF    COMMERCE  241 

court,  in  Wong  Wing  v.  U.  S.,'^  Mr.  Justice  Shiras    copter 
T^riting  the  opinion,  said:     *^  Our  views  upon  the  ' 

question  thus  specifically  pressed  upon  our  atten- 
tion may  be  briefly  expressed  thus:  We  regard  it 
as  settled  by  our  previous  decisions  that  the  United 
States  can,  as  a  matter  of  public  policy,  by  con- 
gressional enactment,  forbid  aliens  or  classes  of 
aliens  from  coming  within  their  borders,  and  expel 
aliens  or  classes  of  aliens  from  their  territory,  and 
can,  in  order  to  make  effectual  such  decree  of  exclu- 
sion or  expulsion,  devolve  the  power  and  duty  of 
identifying  and  arresting  the  persons  included  in 
such  decree,  and  causing  their  deportation,  upon 
executive  or  subordinate  officials.  But  when  Con- 
gress sees  fit  to  further  promote  such  a  policy  by 
subjecting  the  persons  of  such  aliens  to  infamous 
punishment  at  hard  labor,  or  by  confiscating  their 
property,  we  think  such  legislation,  to  be  valid,  must 
provide  for  a  judicial  trial  to  establish  the  guilt  of 
the  accused. '* 

EXCLUSION    BY    THE    STATES    OF    CRIMINALS    AND    POOR 
AND  DISEASED   PERSONS. 

In  Hannibal,  etc.,  R.  Co.  v.  Husen,^  Mr.  Justic3  Asanex<sr- 
»5trong,  writing  the  opinion  of  the  court,  incidentally  pouce^ 
said:  ^'  It  may  also  be  admitted  that  the  police 
power  of  a  State  justifies  the  adoption  of  precau- 
tionary measures  against  social  evils.  Under  it  a 
State  may  legislate  to  prevent  the  spread  of  crime, 
or  pauperism,  or  disturbance  of  the  peace.  It  may 
exclude  from  its  limits  convicts,  paupers,  idiots,  and 
lunatics,   and   persons   likely  to   become   a   public 

*  (1896)   163  U.  S.  228. 
6  (1877)  95  U.  S.  465. 
16 


power. 


242  BEGULATION   OF   COMMERCE 


CiM»ier   charge,  as  well  as  persons  afflicted  by  contagious  or 

infectious  diseases.*'^ 

But  in  Chy  Lung  v.  Freeman  ^  it  had  been  held 
that  a  California  statute  which  provided  that  the 
commissioner  of  immigration  was  to  satisfy  him- 
self whether  or  not  any  passenger  who  should  arrive 
in  the  State  by  vessel  from  any  foreign  port  or 
place  (who  was  not  a  citizen  of  the  United  States) 
was  lunatic,  idiotic,  deaf,  dumb,  blind,  crippled,  or 
infirm,  and  was  not  accompanied  by  relatives  who 
were  able  and  willing  to  support  him,  or  was  likely 
to  become  a  public  charge,  or  had  been  a  pauper  in 
any  other  country,  or  was  from  sickness  or  disease 
(existing  either  at  the  time  of  sailing  from  the  port 
of  departure  or  at  the  time  of  his  arrival  in  the 
State)  a  public  charge,  or  likely  soon  to  become  so, 
or  was  a  convicted  criminal,  or  a  lewd  or  debauched 
woman,  and  that  no  such  person  should  be  permitted 
to  land  from  the  vessel,  unless  the  master  or  owner 
or  consignee  should  give  a  separate  bond  in  each 
case,  conditioned  to  save  harmless  every  county,  city, 
and  town  of  the  State  against  any  expense  incurred 
for  the  relief,  support,  or  care  of  such  person  for  two 
years  thereafter,  was  invalid.  Mr.  Justice  Miller, 
in  the  course  of  the  opinion,  said :  *  *  We  are  not 
called  upon  by  this  statute  to  decide  for  or  against 
the  right  of  a  State,  in  the  absence  of  legislation  by 
Congress,  to  protect  herself  by  necessary  and  proper 
laws  against  paupers  and  convicted  criminals  from 
abroad;  nor  to  lay  down  the  definite  limit  of  such 
right,  if  it  exist.  Such  a  right  can  only  arise  from 
a  vital  necessity  for  its  exercise,  and  cannot  be  car- 

•  See  also  State  v.  The  Steamship  Constitution,  (1872)  42  Cal. 
T  (1876)  92  U.  S.  276. 


BEGULATION   OF   COMMERCE  243 

ried  beyond  the  scope  of  that  necessity.     When  a    Chapter 
State  statute,  limited  to  provisions  necessary  and  ' 

appropriate  to  that  object  alone,  shall,  in  a  proper 
controversy,  come  before  ns,  it  will  be  time  enough 
to  decide  that  question.  The  statute  of  California 
goes  so  far  beyond  what  is  necessary,  or  even  appro- 
priate, for  this  purpose,  as  to  be  wholly  without  any 
sound  definition  of  the  right  under  which  it  is  sup- 
posed to  be  justified.  Its  manifest  purpose,  as  we 
have  already  said,  is  not  to  obtain  indemnity,  but 
money. ''^  And  consistently  with  this  principle  it  Requiring 
has  been  held  that  a  State  statute  requiring  rail-  retumany 

^  "  who  should 

roads  to  return  paupers,  which  was  so  general  that  S^SJi^te. 
it  applied  to  all  persons  brought  into  the  State  by 
a  carrier,  without  regard  to  wealth  or  poverty  when 
brought  in,  and  undertook  to  impose  on  the  carrier 
the  burden  of  removing  or  supporting  any  who 
should,  within  the  time  named,  become  destitute, 
was  invalid.^ 

LOTTERIES. 

The  carrying  of  lottery  tickets  from  one  State  to 
another  by  an  express  company  engaged  in  carrying 

sin  In  re  Ah  Fong,  (1874)  3  Sawy.  (U.  S.)  144,  1  Fed.  Caa. 
No.  102,  Mr.  Justice  Field,  holding  the  Circuit  Court  of  the  Dis- 
trict of  California,  said :  "  The  extent  of  the  power  of  the  State  to 
exclude  a  foreigner  from  its  territory  is  limited  by  the  right  in  which 
it  has  its  origin,  the  right  of  self-defense.  Whatever  outside  of  the 
legitimate  exercise  of  this  right  affects  the  intercourse  of  foreigners 
with  our  people,  their  immigration  to  this  country  and  residence 
therein,  is  exclusively  within  the  jurisdiction  of  the  general  gov- 
ernment, and  is  not  subject  to  State  control  or  interference." 

A  California  statute  prohibiting  the  coming  of  Chinese  persons 
into  the  State,  providing  for  registration  and  certificate  of  residence, 
and  determining  their  status,  was  held  to  be  void  in  Ex  p.  Ah  Cue, 
(1894)  101  Cal.  19T.  See  also  Lin  Sing  v.  Washburn,  (1862)  20 
Cal.  534. 

•  Bangor  17.  Smith,  (1891)  83  Me.  422. 


244  REGULATION   OF    COMMERCE 

Chapter,  freight  and  packages  from  State  to  State,  although 

'       such  tickets  may  be  contained  in  a  box  or  package, 

Declared      can  bv  an  Act  of  Congress  be  legally  made  to  con- 
subjects  of  "^  rM 
commerce     stitute  commerce  among  the  States. 

gress.  ijijjg  determination  of  the  Lottery  Case  ^  involved 

the  consideration  of  three  questions,  namely,  whether 
lottery  tickets  are  subjects  of  commerce,  whether 
the  power  to  regulate  commerce  includes  the  power 
to  prohibit  the  transportation  of  recognized  arti- 
cles of  commerce,  and,  as  closely  connected  with 
puestions  the  sccoud  qucstiou,  whether  prohibiting  the  trans- 
u^Lottery  portatiou  of  lottcry  tickets  infringed  rights  secured 
or  protected  by  the  Constitution.  The  second  ques- 
tion is  discussed  at  length  in  the  first  part  of  this 
work,  in  considering  what  constitutes  the  power 
to  regulate.^  Four  justices  dissented,  and  so  close 
were  the  constitutional  questions  presented,  that 
Mr.  Justice  Harlan,  writing  the  opinion  of  the  court, 
said:  '^  The  whole  subject  is  too  important,  and 
the  questions  suggested  by  its  consideration  are  too 
difficult  of  solution,  to  justify  any  attempt  to  lay 
down  a  rule  for  determining  in  advance  the  validity 
of  every  statute  that  may  be  enacted  under  the  com- 
merce clause.  We  decide  nothing  more  in  the 
present  case  than  that  lottery  tickets  are  subjects 
of  traffic  among  those  who  choose  to  sell  or  buy 
them;  that  the  carriage  of  such  tickets  by  inde- 
pendent carriers  from  one  State  to  another  is  there- 
fore interstate  commerce;  that  under  its  power  to 
regulate  commerce  among  the  several  States,  Con- 
gress —  subject  to  the  limitations  imposed  by  the 
Constitution  upon  the  exercise  of  the  powers  granted 
—  has  plenary  authority  over  such  commerce,  and 

1(1903)   188  U.  S.  321. 
2  See  supra,  p.  50. 


REGULATION    OP   COMMERCE  245 

may  prohibit  the  carriage  of  such  tickets  from  State  Chapter 

to  State;  and  that  legislation  to  that  end,  and  of  that  L. 

character,  is  not  inconsistent  with  any  limitation  or 
restriction  imposed  upon  the  exercise  of  the  powers 
granted  to  Congress.'' 

So  far  as  State  legislation  respecting  lotteries  state  lawi 

.  <="  X  o  respecting 

IS  concerned,  it  has  been  held  that  a  ticket  in  a  lot-  io"e"es. 
tery,  authorized  at  the  place  of  issue,  cannot  be 
regarded  as  within  the  protection  of  the  commerce 
clause.  In  view  of  the  legislation  of  Congress,  this 
certainly  must  be  so.^  And  even  in  the  absence  of 
any  legislation  by  Congress,  the  police  power  of  the 
States  would  seemingly  justify  legislation  prohibit- 
ing the  introduction  of  lottery  tickets  into  the  State. 

INSURANCE. 

In  Paul  V.  Virginia^  Mr.  Justice  Field,  writing  judicial 

«,  .T  T.  1.  declaration 

the  opinion  of  the  court,  said :  *  *  Issmng  a  policy  ^^f^^g^jJJ; 
of  insurance  is  not  a  transaction  of  commerce.  The  commerce, 
policies  are  simple  contracts  of  indemnity  against 
loss  by  fire,  entered  into  between  the  corporations 
and  the  assured,  for  the  Consideration  paid  by  the 
latter."  ^  In  that  case  it  was  held  that  a  statute  of 
Virginia,  providing  that  no  insurance  company,  not 

sRoselle  v.  Farmer's  Bank,  (1897)  141  Mo.  36. 

When  foreign  government  bonds  are  coupled  with  conditions  and 
stipulations  which  change  their  character  from  a  simple  government 
bond  for  the  payment  of  a  certain  sum  of  money  to  a  species  of 
lottery  ticket,  they  are  not  salable  within  a  State  which  prohibits 
the  sale  of  any  lottery  tickets  within  the  State.  Ballock  v.  State, 
(1890)  73  Md.  1. 

4  (1868)   8  Wall.    (U.  S.)    168. 

5  See  also  Philadelphia  F.  Assoc,  v.  New  York,  (1886)  119  U.  S. 
110;  and  see  Liverpool  Ins.  Co.  v.  Massachusetts,  (1870)  10  Wall. 
(U.  S.)  566,  as  to  a  statute  held  to  be  applicable  to  an  English 
joint-stock  association  having  the  attributes  generally  found  in 
corporations. 


246  REGULATION    OF    COMMERCE 

Chapter  incorporated  under  the  laws  of  the  State,  should 
'  carry  on  its  business  within  the  State  without  pre- 
viously obtaining  a  license,  until  it  had  deposited 
with  the  treasurer  of  the  State  bonds  of  a  specified 
character  varying  in  amount  according  to  the  ex- 
tent of  the  capital  employed,  was  valid. 

A  State  statute  which  in  effect  annuls  the  pro- 
visions of  a  policy  declaring  that  the  contract  shall 
be  construed  and  interpreted  according  to  the  laws 
of  the  State  in  which  the  company  was  incorporated,^ 
and  also  a  statute  making  it  unlawful  for  an  insur- 
ance agent  or  broker  to  act  in  the  negotiation  of 
insurance  with  a  foreign  insurance  company  not 
admitted  to  do  business  within  the  State,''^  have  been 
held  to  be  valid.^ 

sute  regu-        But  deprivation  of  liberty  of  contract,  without 

lation  3S  an 

exercise  of    (luc  proccss  of  law,  iu  vlolatlou  of  the  Fourteenth 

police  ^  ^ 

power.  Amendment,  has  been  held  to  result  from  the  opera- 
tion of  a  statute  prohibiting  the  making  of  a  marine 
insurance  contract  by  the  assured  himself  and  not 
through  a  broker,  outside  the  State,  on  property 
then  in  the  State.  That  the  regulation  of  insur- 
ance might  be  the  proper  subject  for  the  exercise  of 
the  police  power  has  been  suggested  by  Mr.  Justice 
Peckham,  when,  speaking  for  the  court,  on  the  ques- 
tion of  the  liberty  of  the  citizen  to  contract  for  in- 


«New  York  L.  Ins.  Co.  v.  Cravens,  (1900)  178  U.  S.  389. 

7  Nutting  V.  Massachusetts,  (1902)  183  U.  S.  553;  Hooper  v. 
California,  (1895)   155  U.  S.  648. 

Bin  Lafayette  Ins.  Co.  v.  French,  (1855)  18  How.  (U.  S.)  404, 
it  was  held  that  where  an  insurance  company  chartered  by  one  State 
was  allowed  to  do  business  in  another,  upon  the  condition  that  ser- 
vice of  process  upon  the  agent  of  the  corporation  should  be  con- 
sidered as  service  upon  the  corporation  itself,  a  judgment  against 
the  company,  obtained  by  means  of  such  process,  should  be  received 
with  like  full  faith  and  credit  in  the  State  in  which  it  was  chartered. 


REGULATION    OF    COMMERCE  247 

I 

surance,  he  said  that  '^  this  does  not  interfere  in  Chapter 

any  way  with  the  acknowledged  right  of  the  State  

to  enact  such  legislation  in  the  legitimate  exercise 
of  its  police  or  other  powers  as  to  it  may  seem 
proper/' ^ 

The  emphatic  and  repeated  declarations  of  the  Power  of 

Congress 

United  States  Supreme  Court,  in  the  above  cases,  1°  ^^.^^^ 


insurance 
to  be ' 
merce. 


that  insurance  is  not  commerce,  would  seem  to  pre- 
clude further  inquiry.  All  the  cases,  however,  arose 
on  State  statutes.  That  Congress  has  the  power  to 
define,  by  inclusion  and  exclusion,  what  are  the  sub- 
jects of  commerce  —  subject  to  the  right  of  the 
courts  to  say  that  the  subject  declared  by  Congresa 
to  be  commerce  has  no  relation  to  intercourse  — 
has  been  discussed  in  the  first  part  of  this  work  in 
the  section  on  the  power  to  define  commerce.^ 

If,  under  the  principles  there  outlined,  the  sub-  Probawe 

■•^  ^  judicial 

ject  of  insurance  may  be  said  to  be  embraced  by  the  ^f  °fj'^ 
term  commerce,  as  generally  defined,  as  understood  n^S'oll.*^^ 
by  economists,  or  as  colloquially  used,  the  courts 
would  probably  be  constrained  to  accept  the  legis- 
lative declaration  that  insurance  is  commerce,  and  to 
permit  the  operation  of  federal  legislation  on  inter- 
state and  foreign  insurance  transactions.  It  is  not 
easily  perceivable,  however,  how  Congress  can  con- 
stitutionally legislate  on  the  subject,  except  indi- 
rectly, as  by  denying  mail  and  interstate  transporta- 
tion facilities  to  a  company  which  is  not,  in  its 
interstate  business,  complying  with  the  regulations 
prescribed  by  or  under  the  authority  of  Congress. 
The  situation  would  present  a  condition  for  which 
there  is  no  precedent.  Sustaining  the  validity  of  ffffc^'S'* 
federal  regulations  would  not  necessarily  mean  the  regSition.- 

•  Allgeyer  v.  Louisiana,  (1897)   165  U.  S.  678. 
1  Bee  supra,  p.  36. 


248 


REGULATION   OF    COMMERCE 


!hapt( 


Chapter  actual  overruling  of  tlie  foregoing  insurance  cases. 
Upon  the  repeal  of  the  federal  legislation,  it  would 
be  within  the  province  of  the  court  to  declare,  in  the 
absence  of  federal  legislation,  that  insurance  is  not 
commerce,  and  again  to  give  effect  to  State  statutes. 
And  even  if  federal  laws  were  enacted,  State  regula- 
tions governing  the  conduct  of  the  business  of  a 
domestic  insurance  company  with  citizens  of  the 
same  State  would  not  be  rendered  inoperative. 
Likewise,  provisions  of  State  statutes  regulating 
transactions  by  citizens  of  the  State  with  foreign 
insurance  companies,  which  were  not  in  actual  con- 
flict with  the  federal  regulations,  would  probably  be 
sustained  if  the  suggestion  above  referred  to,  that 
the  regulation  of  insurance  partakes  of  the  nature 
of  the  exercise  of  a  police  power,  were  followed. 


STATE  REGULATION  OP  FOREIGN  CORPORATIONS. 


Power  to 
exclude 
foreign  cor- 
porations 
or  admit 
them  on 
conditions. 


Article  IV,  section  2,  clause  1,  of  the  Constitu- 
tion provides  that  *^  the  citizens  of  each  State  shall 
be  entitled  to  all  privileges  and  immunities  of  citi- 
zens in  the  several  States.''  The  term  citizens,  as 
there  used,  applies  only  to  natural  persons,  not  to 
artificial  persons  created  by  the  legislature  and  pos- 
sessing only  the  attributes  which  the  legislature  has 
prescribed.  Consequently,  corporations  are  not 
citizens  within  the  meaning  of  the  above  clause. 
Having  no  legal  existence  beyond  the  limits  of  the 
State  which  created  it,  a  corporation  cannot  enter 
other  States  or  claim  the  aid  of  their  laws  in 
the  enforcement  of  its  contracts,  except  upon  the 
comity  of  those  States.  Having  the  absolute  power 
of  excluding  the  foreign  corporation,  a  State  may 
impose  such  conditions  upon  permitting  the  corpora- 


REGULATION   OF   COMMERCE  249 

tion  to  do  business  within  its  limits  as  it  may  judge    ^^P^^' 

expedient.^  ' 

Two  exceptions  or  qualifications  are  attached  to  f^^^^^^^^^ 
this  rule.      One  of  these  qualifications  is  that  the 
State  cannot  exclude  from  its  limits  a  corporation 
which  is  engaged  in  interstate  or  foreign  commerce/" 
The  other  limitation  on  the  power  of  the  State  is 


2  Diamond  Glue  Co.  v.  U.  S.  Glue  Co.,  (1903)  187  U.  S.  611; 
Waters-Pierce  Oil  Co.  v.  Texas,  (1900)  177  U.  S.  28;  Connecticut 
Mut.  L.  Ins.  Co.  V.  Spratley,  (1899)  172  U.  S.  602;  Orient  Ins.  Co. 
V.  Daggs,  (1899)  172  U.  S.  557;  Blake  v.  McClung,  (1898)  172 
U.  S.  239;  New  York  v.  Roberts,  (1898)  171  U.  S.  658;  Allgeyer  v. 
Louisiana,  (1897)  165  U.  S.  578;  Hooper  v.  California,  (1895)  155 
U.  S.  648;  Crutcher  v.  Kentucky,  (1891)  141  U.  S.  47;  Home  Ins.  Co. 
V.  New  York,  (1890)  134  U.  S.  594;  Fritts  v.  Palmer,  (1889)  132 
U.  S.  282;  Philadelphia  F.  Assoc,  v.  New  York,  (1886)  119  U.  S. 
110;  Doyle  v.  Continental  Ins.  Co.,  (1876)  94  U.  S.  540;  Home  Ins. 
Co.  V.  Augusta,  (1876)  93  U.  S.  116;  Liverpool  Ins.  Co.  v.  Massa- 
chusetts, (1870)  10  Wall.  (U.  S.)  566;  Ducat  v.  Chicago,  (1870) 
10  Wall.  (U.  S.)  410;  Paul  v.  Virginia,  (1868)  8  Wall.  (U.  S.)  168; 
Lafayette  Ins.  Co.  v.  French,   (1855)   18  How.   (U.  S.)   404. 

A  further  application  of  this  principle,  with  its  limitations,  is 
dealt  with  in  a  later  part  of  this  work  in  discussing  the  taxation  of 
the  franchises  of  foreign  corporations.     See  infra,  p.  313. 

3  Fritts  V.  Palmer,  (1889)  132  U.  S.  282;  Cooper  Mfg.  Co.  v. 
Ferguson,  (1885)  113  U.  S.  727;  Pensacola  Tel.  Co.  v.  Western 
Union  Tel.  Co.,  (1877)  96  U.  S.  1. 

A  foreign  corporation  engaged  in  furnishing  milling  machinery 
and  adjusting  it  in  position  in  the  mill  is  engaged  in  an  act  of 
interstate  commerce,  and  need  not  comply  with  State  laws  requiring 
foreign  corporations,  before  doing  business  in  the  State,  to  register 
their  charters.  Milan  Milling,  etc.,  Co.  v.  Gorten,  (1894)  93  Tenn. 
590. 

A  foreign  corporation  engaged  in  the  press-dispatch  business  is 
not  engaged  in  interstate  commerce.  Associated  Press  v.  Com.,  (Ky. 
1901)   60  S.  W.  Rep.  295. 

A  loan  of  money  by  a  foreign  corporation  to  a  citizen  of  the 
State  is  not  a  matter  of  interstate  ^commerce.  Nelms  v.  Edinburg 
American  Land  Mortg.  Co.,   (1890)   92  Ala.  157. 

The  execution  of  a  canvasser's  bond  to  a  foreign  corporation  is  a 
transaction  of  interstate  commerce.  Gunn  v.  White  Sewing  Mach. 
Co.,  (1892)  57  Ark.  24. 


250  REGULATION    OF    COMMERCE 

Chapter  where  the  corporation  is  in  the  employ  of  the  fed- 
'  eral  government  or  has  been  organized  under  the 
laws  of  Congress.^  Mr.  Justice  Bradley,  at  Circuity 
said  that  **  if  Congress  should  employ  a  corpora- 
tion of  shipbuilders  to  construct  a  man-of-war,  they 
would  have  the  right  to  purchase  the  necessary 
timber  and  iron  in  any  State  of  the  Union,  * '  ^  and  in 
Pembina  Consol.  Silver  Min.,  etc.,  Co.  v.  Pennsyl- 
vania ^  Mr.  Justice  Field,  in  quoting  with  approval 
this  passage,  added  ^  ^  —  without  the  permission  and 
against  the  prohibition  of  the  State. ' ' 
f?re"n%%-  Though  a  foreign  corporation  cannot  be  excluded 
Smpir  ^°  ^y  ^  State  when  it  is  engaged  in  interstate  or  foreign 
re^i^^  commerce,  it  nevertheless  must  comply  with  and  is 
subject  to  the  laws  of  the  State  governing  the 
strictly  local  or  domestic  part  of  the  business  of 
such  corporation.  A  foreign  railroad  company 
must  provide  equal  accommodations  for  separate 
races,  for  the  purely  domestic  part  of  its  business,, 
when  the  law  of  the  State  requires  that  arrange- 
ment,^ and  the  rates  charged  by  a  railroad,  incor- 
porated in  two  States,  may  be  regulated  by  one  of 
those  States  as  to  the  intrastate  transportation.* 
The  mere  fact  that  a  railroad  corporation  has  been 
organized  under  the  laws  of  Congress  does  not  ex- 
empt it  from  State  control  in  respect  to  rates  for 
local  freight.  Congress  can  wholly  remove  such  a 
corporation  from  State  control,  but  in  the  absence 
of  something  in  the  statutes  indicating  an  intention 
on  the  part  of  Congress  so  to  remove  it,  the  State 

♦  Reagan  v.  Mercantile  Trust  Co.,  (1894)  154  U.  S.  413. 

»  Stockton  V.  Baltimore,  etc.,  R.  Co.,  (1887)  32  Fed.  Rep.  9. 

«  (1888)  125  U.  S.  181. 

T  Louisville,  etc.,  R.  Co.  v.  Mississippi,   (1890)   133  U.  S.  587^ 

•  Railroad  Commission  Cases,  (1886)   116  U.  S.  307. 


KEGULATION    OF    COMMEBCE  251 

lias  the  power  to  prescribe  the  rates  for  all  local    Chapter 
business  carried  by  it.®  ' 


Not  only  is  a  foreign  corporation,  engaged  in  Jjj^p^aje^^ 
interstate  commerce,  under  the  control  of  the  State  Pubjec^to 
in  respect  to  its  local  business,  but  its  business,  both  powln°^**^*^ 
interstate  and  local,  is  within  the  control  of  the  State 
in  the  exercise  of  its  police  power.  Thus,  interstate 
railroads  must  comply  with  State  laws  regulating 
the  heating  of  cars,^  requiring  the  examination  of 
locomotive  engineers  for  color  blindness,^  and  pro- 
hibiting the  running  of  freight  trains  on  Sunday ;  ^ 
and  such  corporations  are  within  the  operation  of 
statutes  invalidating  contracts  exempting  a  carrier 
from  its  common-law  liability.*  In  like  manner,  a 
foreign  telegraph  company  is  liable  to  a  statutory 
penalty  for  failing  to  deliver  dispatches  within  the 
State  with  due  diligence,  though  they  may  have  been 
sent  from  outside  the  State.^ 

9  Reagan  v.  Mercantile  Trust  Co.,  (1894)  154  U.  S.  413. 

1  New  York,  etc.,  R.  Co.  v.  New  York,  (1897)  165  U.  S.  628. 

So  far  as  concerns  any  leased  line  of  railroad  within  a  State,  a 
foreign  corporation  is  subject  to  the  State  police  regulations.  Von 
Steuben  v.  Central  R.  Co.,  (1895)  4  Pa.  Dist.  153. 

2  Nashville,  etc.,  R.  Co.  v.  Alabama,  (1888)  128  U.  S.  96. 
3Hennington  v.  Georgia,  (1896)   163  U.  S.  299. 

*  Chicago,  etc.,  R.  Co.  v.  Solan,  (1898)  169  U.  S.  133. 
6  Western  Union  Tel.  Co.  v,  James,  (1896)  162  U.  S.  650. 


nate. 


CHAPTER  Xni. 

DISCRIMINATIVE  STATE  STATUTES. 

Chapter   T^HE  lack  of  legal  force  of  State  discriminative 
^^^^'       I       statutes  was  stated  by  Mr.  Justice  Harlan,  in 
stateswith-  Gu^  V.  Baltimore^  wherein  lie  said :     *  *  No 

tSdiSriSi-  State  can,  consistently  with  the  Federal  Constitution, 
impose  upon  the  products  of  other  States,  brought 
therein  for  sale  or  use,  or  upon  citizens  because  en- 
gaged in  the  sale  therein,  or  the  transportation 
thereto,  of  the  products  of  other  States,  more 
onerous  public  burdens  or  taxes  than  it  imposes 
upon  the  like  products  of  its  own  territory.  If  this 
were  not  so,  it  is  easy  to  perceive  how  the  power  of 
Congress  to  regulate  commerce  with  foreign  nations 
and  among  the  several  States  could  be  practically 
annulled,  and  the  equality  of  commercial  privileges 
secured  by  the  Federal  Constitution  to  citizens  of 
the  several  States  be  materially  abridged  and 
impaired.'' 2 

1  (1879)  100  U.  S.  434. 
See   also   the   discussion   of   discrimination   by   taxation,   infra, 

p.  315. 

2  As  to  statutes  prohibiting  any  but  citizens  of  the  State  from 
planting  oysters  in  or  taking  them  from  the  navigable  waters  of  the 
State,  see  that  part  of  this  work  respecting  the  regulation  of  oyster 
fisheries,  supra,  p.  237. 

A  State  cannot  prohibit  the  peddling  of  goods  from  other  States. 
Sayre  v.  Phillips,  (1892)  148  Pa.  St.  482. 

A  municipal  ordinance  providing  that  a  railroad  company  whose 
business  included  the  transportation  of  persons  to  a  town  in  another 
State  should  sell  to  residents  of  the  city,  for  a  sum  not  to  exceed 


REGULATION   OF    COMMERCE  253 

But  though  a  part  of  a  State  statute  be  dis-    chapter 

criminatory,  and  therefore  void,  whether  the  legal  1, 

clauses  can  be  eliminated  without  destroying  the  construc- 

•^        ^  tion  of  stat- 

other  provisions  is  a  State  and  not  a  federal  ques-  SffcSmr''* 
tion,  and  the  Supreme  Court  of  the  United  States  ruJeT^^^^' 
will  accept  the  interpretation  given  by  the  State 
court  and  will  test  their  validity  accordingly.  And 
when  the  invalid  clause  is  eliminated  by  the  con- 
struction given  by  the  State  court,  the  statute,  as  so 
construed,  will  be  allowed  to  operate.^ 

A     municipal     corporation,     being     authorized  specifyingr 
thereto  by  statute,  selected  a  certain  kind  of  asphalt,  ^'i^jjfp^i' 
the  product  of  a  foreign  country,  for  use  in  making  menu''*'" 
improvements.     It  was  held  that  the  specification 


$1.50,  commutation  tickets  good  for  thirty  rides  for  thirty  days 
from  the  date  of  issue,  from  any  point  on  its  line  in  the  city  over 
its  bridge  to  any  point  in  another  State  to  which  its  cars  might  be 
operated,  then  from  said  point  in  that  other  State  over  its  bridges 
and  lines  to  any  point  on  its  lines  in  the  city,  was  held  to  be  invalid 
for  discriminating  in  favor  of  the  citizens  of  the  State  as  against 
those  of  another  State.  State  v.  Omaha,  etc.,  E,.,  etc.,  Co.,  (1901) 
113  Iowa  30. 

A  statute  requiring  seed  packets  to  be  dated,  and  excepting  seed 
sold  by  farmers  in  open  bulk  to  other  farmers,  is  invalid.  In  re 
Sanders,  (1892)  52  Fed.  Rep.  802.  As  is  also  a  statute  stipulating 
conditions  to  the  sale  of  trees,  plants,  shrubs,  or  vines,  and  excepting 
such  grown  in  the  State.     In  re  Schechter,  (1894)  63  Fed.  Rep.  695. 

sOlsen  V.  Smith,  (1904)  195  U.  S.  332,  as  to  a  pilot  law,  the 
discriminating  provisions  of  which,  if  allowed  to  stand,  would  have 
been  in  conflict  with  an  Act  of  Congress.  See  also  Howe  Mach.  Co. 
V.  Gage,   (1879)   100  U.  S.  676,  infra. 

Statutes  favoring  domestic  wines  were  held  to  be  invalid  in  Mc- 
Creary  v.  State,  (1883)  73  Ala.  480;  Powell  v.  State,  (1881)  69  Ala. 
10;  Higgins  v.  Rinker,  (1877)  47  Tex.  381. 

But  in  Ex  p.  Kinnebrew,  (1888)  35  Fed.  Rep.  52,  and  State  v. 
Deschamp,  (1890)  53  Ark.  490,  the  invalid  clause  or  clauses  were 
stricken  out  and  the  sale  of  imported  and  domestic  wines  permitted; 
and  in  Weil  v.  Calhoun,  (1885)  25  Fed.  Rep.  865,  the  clause  pro- 
tecting domestic  wines  was  declared  void  and  the  broad  prohibition 
clause  was  given  full  effect. 


254 


REGULATION   OF    COMMERCE 


Chapter 
XIII. 


Action  of 
State  officer 
under  a 
State  mo- 
nopoly. 


of  this  particular  asphalt,  there  being  other  de- 
posits in  other  States  from  which  suitable  asphalt 
could  have  been  had,  was  not  an  interference  with 
interstate  commerce.  While  such  use  of  a  foreign 
commodity  to  the  exclusion  of  like  material  found 
in  the  United  States  may  in  a  limited  degree  affect 
interstate  commerce,  it  is  not  one  of  those  direct 
interferences  with  the  power  over,  and  express  con- 
trol of,  the  subject  given  by  the  Constitution  to 
Congress.  Nor  can  the  provisions  of  the  Sherman 
Anti-Trust  Act  be  invoked  in  such  a  case,  as  that 
statute  was  not  intended  to  affect  contracts  which 
have  only  a  remote  and  indirect  bearing  upon 
commerce.* 

Under  one  of  the  South  Carolina  dispensary 
laws,  it  was  urged  that  the  law,  giving  to  the  State 
officers  exclusive  right  to  purchase  all  the  liquor  to 
be  sold  in  the  State,  gave  the  officers  the  oppor- 
tunity, by  exercising  their  right  of  purchase,  to  buy 


*  Field  V.  Barber  Asphalt  Paving  Co.,  (1904)  194  U.  S.  618. 

In  People  v.  Coler,  (1901)  166  N.  Y.  144,  it  was  held  that  a 
statute  requiring  only  materials  manufactured  in  the  State  to  be 
used  on  public  works  was  invalid  as  a  regulation  of  commerce. 

But  in  Allen  v.  Labsap,  (1905)  188  Mo.  692,  it  was  held  that  a 
municipal  ordinance,  providing  that  "  all  ordinances  and  contracts 
authorizing  the  doing  of  public  work  in  the  city  of  St.  Louis  which 
involves  the  use  of  dressed  rock,  granite,  or  stone  shall  contain  a 
provision  that  the  work  of  dressing  such  rock,  granite,  or  stone 
shall  be  done  within  the  territorial  limits  of  the  State  of  Missouri," 
was  valid. 

A  statute  requiring  goods  made  by  convict  labor,  except  as  thus 
made  in  the  enacting  State,  to  be  branded,  was  held  to  be  invalid  in 
People  V.  Hawkins,  (189.5)  85  Hun  (N.  Y.)  43.  The  statute  was 
amended  by  striking  out  the  discriminating  clause,  but,  as  thus 
amended,  was  held  to  be  invalid  as  discriminating  against  prison- 
made  goods  in  favor  of  those  made  by  free  labor.  People  v.  Hawkins, 
(1898)  167  N.  Y.  1.  See  Bogart  v.  State,  10  Ohio  Dec.  (Reprint) 
366,  20  Cine.  L.  Bui.  458,  as  to  the  invalidity  of  a  statute  requiring 
a  license  to  be  paid  to  sell  convict-made  goods.  


BEGULATION   OF   COMMERCE  255 

in  one  State  to  the  detriment  and  exclusion  of  the  ^^^^^ 
products  of  every  other  State.  It  was  argued  that  ____1_ 
this  arbitrary  power  demonstrated  the  inherent  dis- 
crimination arising  from  legislation  which  made 
State  officers  the  sole  persons  authorized  to  buy  and 
sell  liquor,  and  that  these  supposed  unjust  conse- 
quences could  only  be  avoided  by  recognizing  the 
right  of  the  residents  of  all  other  States  to  ship  their 
products  into  the  State  and  sell  them  in  original 
packages.  But  the  court,  speaking  by  Mr.  Justice 
White,  in  Vance  v.  W.  A.  Vandercook  Co.,^  said: 
*^  To  maintain  this  proposition,  the  presumption 
must  be  indulged  in  that  the  State  officer,  in  pur- 
chasing as  provided  by  the  State  statute,  instead  of 
buying  fairly  and  in  the  best  markets,  affording  an 
equal  chance  to  all  sellers  and  to  every  locality,  will, 
on  the  contrary,  so  act  as  to  discriminate  against  the 
products  of  one  or  more  States  and  in  favor  of  those 
of  others.  Such  a  presumption  would  be  equally 
justified  in  case  the  State  law  authorized  only  resi- 
dents to  be  licensed  to  sell  liquor  and  restricted  the 
number  of  such  licenses.  The  persons  so  licensed, 
whether  one  or  one  hundred,  would  buy  where  they 
pleased  the  liquor  they  proposed  to  sell,  and  it 
would  therefore  be  fully  as  cogent  to  argue  that  they 
might  elect  to  buy  in  one  place  instead  of  another, 
and  thus  discriminate  against  the  persons  or  places 
from  where  or  from  whom  they  did  not  buy. ' '  And  Effect  of 
as  disposing  completely  of  the  contention,  it  was 
pointed  out  that  the  right  to  ship  merchandise  from 
one  State  into  another,  guaranteed  by  the  commerce 
clause  and  protected  until  the  termination  of  the 
shipment  by  delivery  at  the  place  of  consignment,  is 
wholly  unaffected  by  the  Act  of  Congress  of  August 

6  (1898)   170  U.  S.  438. 


laws. 


256  REGULATION   OP   COMMEECE 

Chapter    8,  1890,^  which  allows  State  authority  to  attach  to 

'__  the  original  package  before  the  sale  but  only  after 

delivery.  And  it  was  further  said  that  the  conclu- 
sion that  it  is  the  right  of  every  resident  of  South 
Carolina  to  receive  for  his  own  use  liquor  from 
other  States,  and  that  the  inhibitions  of  a  State 
statute  do  not  operate  to  prevent  liquors  from  other 
States  from  being  shipped  into  such  State,  on  the 
order  of  a  resident  for  his  use,  '^  demonstrates  the 
unsoundness  of  the  contention  that  if  State  agents 
are  the  only  ones  authorized  to  buy  liquor  for  sale 
in  a  State,  and  they  select  the  liquor  to  be  sold  from 
particular  States,  the  products  of  other  States  will 
be  excluded. ' '  '^ 
Inspection  The  powcr  of  a  State  to  pass  inspection  laws  is 

limited  by  the  consideration  that  no  discrimination 
can  be  made  against  products  or  industries  of  some 
States  in  favor  of  products  and  industries  of  its 
own  or  of  other  States.^  Eequiring  certain  mate- 
rials brought  into  the  State  to  be  inspected  and  have 

«  See  supra,  p.  143. 

7 "  When  a  State  recognizes  the  manufacture,  sale,  and  use  of 
intoxicating  liquors  as  lawful,  it  cannot  discriminate  against  the 
bringing  of  such  articles  in,  and  importing  them  from  other  States; 
*  *  *  such  legislation  is  void  as  a  hindrance  to  interstate  com- 
merce and  an  unjust  preference  of  the  products  of  the  enacting  State 
as  against  similar  products  of  the  other  States."  Per  Mr.  Justice 
Shiras,  in  Scott  v.  Donald,  (1897)  165  U.  S.  58. 

8  Austin  V.  Tennessee,  (1900)  179  U.  S.  343;  Brimmer  v.  Rebman, 
(1891)  138  U.  S.  78. 

A  Massachusetts  statute  requiring  an  inspection  of  all  lime  im- 
ported or  sold  in  that  State,  but  prescribing  no  standard  either  of 
quality,  or  mode  of  packing,  or  size  of  casks,  except  as  to  lime 
manufactured  in  Massachusetts  or  imported  from  Maine,  was  held 
to  be  invalid,  for  providing  for  the  forfeiture  of  a  cask  of  lime  sold 
or  exposed  to  sale  when  the  cask  was  not  of  the  prescribed  size, 
while  there  was  no  provision  as  to  the  size  of  a  cask  in  which  lime 
might  be  sold  if  imported  from  any  State  but  Maine.  Higgins  V. 
Three  Hundred  Casks  Lime,  (1880)   130  Mass.  1. 


BEGULATION   OF    COMMERCE  257 

the  state  inspection  marked  thereon,  when  not  re-    Chapter 

quired  of  similar  materials  manufactured  in  the  ^ 

State,  is  an  instance  of  discrimination,  and  a  statute 
of  Virginia  declaring  as  follows:  '^(l)  All  flour 
brought  into  this  State  and  offered  for  sale  therein 
shall  be  reviewed,  and  have  the  Virginia  inspection 
marked  thereon.  (2)  Any  person  or  persons  selling 
or  offering  to  sell  such  flour  without  review  or  in- 
spection, as  provided  in  the  preceding  section,  shall 
be  fined  the  sum  of  five  dollars,  for  the  use  of  the 
commonwealth,  for  each  barrel  so  sold  or  offered 
for  sale, ' '  was  held  to  be  void.^ 

The  State  of  Minnesota  passed  a  statute  pro-  inspectio. 

^  -^  of  animals 

viding  that  all  cattle,  sheep,  and  swine  to  be  *°^Jj 
slaughtered  for  human  food  within  the  respective 
jurisdictions  of  the  inspectors  should  be  inspected 
by  the  proper  local  inspector  appointed  in  Minne- 
sota, within  twenty-four  hours  before  the  animals 
were  slaughtered,  and  that  a  certificate  should  be 
made  by  such  inspector,  showing,  if  such  were  the 
fact,  that  the  animals,  when  slaughtered,  were  found 
healthy  and  in  suitable  condition  to  be  slaughtered 
for  human  food.  But  in  Minnesota  v.  Barber^  Mr. 
Justice  Harlan,  delivering  the  opinion  of  the  court,  witwn 
said  that  *  *  as  the  inspection  must  take  place  within  four"hours 


slaughtered 
for  food. 


before 


ing. 


the  twenty-four  hours  immediately  before  the  slaughter 
slaughtering,  the  act,  by  its  necessary  operation, 
excludes  from  the  Minnesota  market,  practically,  all 
fresh  beef,  veal,  mutton,  lamb,  or  pork  —  in  what- 
ever form,  and  though  entirely  sound,  healthy,  and 
fit  for  human  food — taken  from  animals  slaughtered 
in  other  States;  and  directly  tends  to  restrict  the 

sVoight  V.  Wright,   (1891)   141  U.  S.  63.      See  Glover  v.  Flour 
Inspectors,   (1891)   48  Fed.  Rep.  348. 
1  (1890)  136  U.  S.  313. 
17 


258  REGULATION    OF    COMMERCE 

^Chapter    slaughtering  of  animals,  whose  meat  is  to  be  sold  in 

'__  Minnesota  for  human  food,  to  those  engaged  in  such 

business  in  that  State."     And  under  a  statute  of 


ftandred 
4Biles  from 
f><aceof 
'.«a!e  —  In- 
spection 
Jfee. 


one  Virginia  declaring  ''  that  it  shall  not  be  lawful  to 
offer  for  sale,  within  the  limits  of  this  State,  any- 
fresh  meats  (beef,  veal,  or  mutton)  which  shall  have 
been  slaughtered  one  hundred  miles  or  over  from 
the  place  at  which  it  is  offered  for  sale,  until  and 
except  it  has  been  inspected  and  approved  as  here- 
inafter provided.  .  .  .  And  for  all  fresh  meat 
so  inspected  said  inspector  shall  receive  as  his  com- 
pensation one  cent  per  pound,  to  be  paid  by  the 
owner  of  the  meat,"  the  owner  of  meats  from 
animals  slaughtered  one  hundred  miles  or  over  from 
the  place  of  sale,  being  required  to  pay  the  heavy 
charge  of  one  cent  per  pound  to  the  inspector,  as 
his  compensation,  could  not  compete  upon  equal 
terms,  in  the  markets  of  that  commonwealth,  with 
those  in  the  same  business  whose  meats  of  like  kind, 
from  animals  slaughtered  within  less  than  one  hun- 
dred miles  from  the  place  of  sale,  were  not  sub- 
jected to  inspection ;  and  it  was  said  that  ' '  a  State 
may  establish  regulations  for  the  protection  of  its 
people  against  the  sale  of  unwholesome  meats, 
provided  such  regulations  do  not  conflict  with  the 
powers  conferred  by  the  Constitution  upon  Con- 
gress, or  infringe  rights  granted  or  secured  by  that 
instrument.  But  it  may  not,  under  the  guise  of 
exerting  its  police  powers,  or  of  enacting  inspec- 
tion laws,  make  discrimination  against  the  products 
and  industries  of  some  of  the  States  in  favor  of 

^he  products  and  industries  of  its  own  or  of  other 
States."  2 

2  Per  Mr.  Justice  Harlan,  in  Brimmer  v.  Rebman,  (1891)  138  U.  S. 
78.  See  also  Ex  p.  KieflFer,  (1889)  40  Fed.  Rep.  399;  Swift  v. 
Sutphin,    (1889)    39  Fed.  Rep.  630;   Schmidt  v.  People,    (1892)    18 


BEGULATION   OF    COMMERCE  259 

A  law  of  the  State  of  Virginia  imposing  compul-    ^^^fj®^ 
sory  pilotage  on  all  vessels  inward  bound  from  sea  '__ 


through  the  Virginia  capes,   other  than  coasting  Exempting 
vessels  having  a  pilot's  license,  and  likewise  im-  sefsfrom*^ 

.  ,,  ,  ,     compulsory 

posing  compulsory  pilotage  on  all  vessels  outward  pnotage. 
bound  through  the  capes  is  not  in  and  of  itself 
discriminatory.  The  fact  that  Virginia  has  no 
appreciable  commerce  from  her  own  ports  inward 
bound  through  the  capes,  and  that  the  State  does 
not  subject  the  commerce  on  her  internal  waters  to 
a  compulsory  charge  for  pilotage,  does  not  render 
the  law  invalid,  as  in  conflict  with  an  Act  of  Con- 
gress avoiding  the  provisions  of  all  State  regula- 
tions making  *^  any  discrimination  in  the  rate  of 
pilotage  or  half  pilotage  between  vessels  sailing 
between  the  ports  of  one  State  and  vessels  sailing 
between  the  ports  of  different  States,  or  any  dis- 
crimination against  vessels  propelled  in  whole  or 
in  part  by  steam,  or  against  national  vessels  of  the 
United  States.'' ^ 

The  city  of  Baltimore  adopted  a  municipal  ordi-  in  wharf- 
nance  declaring  that  ^*  all  vessels  resorting  to  or  Sfmgmu- 

.    .  1^'  J       nicipal 

lying  at,  landing,  depositmg,  or  transportmg  goods  wharves, 
or  articles  other  than  the  production  of  this  State, 
on  or  from  any  wharf  or  wharves  belonging  to  the 
mayor  and  city  council,  or  any  public  wharf  in  the 
said  city,  other  than  the  wharves  belonging  to  or 
rented  by  the  State,  shall  be  chargeable  with  the 
wharfage  as  fixed  by  this  ordinance,  upon  all  goods 
or  articles  landed  or  deposited  on  any  wharf  or 
wharves  belonging  to  the  said  mayor  and  city 
council;  and  the  master  or  owner  of  the  vessel  so 

Colo.  78;  HoflFman  v.  Harvey,  (1891)   128  Ind.  600;  State  V.  Klein, 
(1890)  126  Ind.  68. 

3  Thompson  v.  Darden,  (1905)  198  U.  S.  310. 


260  REGULATION   OF   COMMERCE 

^xifi^^    depositing,  landing,  or  transporting  said  goods  or 

L_  articles,  shall  be  responsible  for  the  same.''    In  Guy 

V.  Baltimore^  it  was  argued  in  support  of  the  ordi- 
nance that  the  city,  by  virtue  of  its  ownership  of 
the  wharves,  had  the  right,  in  its  discretion,  to 
permit  their  use  to  all  vessels  landing  thereat  with 
the  products  of  Maryland,  and  that  those  operating 
vessels  laden  with  the  products  of  other  States  could 
not  justly  complain,  so  long  as  they  were  not  re- 
quired to  pay  wharfage  fees  in  excess  of  reasonable 
compensation  for  the  use  of  the  city's  property. 
But  it  was  held  that  while  the  city,  if  it  chose, 
could  have  permitted  the  public  wharves,  which  it 
owned,  to  be  used  without  charge,  or  could  have 
exacted  wharfage  fees  equally  from  all  who  used  its 
improved  wharves,  it  could  not  be  permitted  by  dis- 
criminations of  that  character  to  impede  commercial 
intercourse.^ 

*  (1879)   100  U.  S.  434. 

6  A  statute  which  makes  a  distinction  of  wharfage  between  canal 
boats  plying  on  the  waters  of  the  State  exclusively,  and  all  other 
canal  boats  and  barges,  is  invalid;  wharfage  charges  can  be  com- 
pensatory merely,  and  a  mere  compensatory  payment  must  be  gen- 
eral and  uniform.  Broeck  v.  The  Barge  John  M.  Welch,  (1880)  2 
Fed.  Rep.  364. 


PART  III. 

STATE   TAXATION  AS  AFFECTING 
COMMERCE. 


o 


CHAPTER   XIV. 
TAXATION  OF  IMPOKTS  AND  EXPORTS. 

NE  of  the  clauses  enumerated  in  the  beginning  chapter 
of  this  work  is  that  of  Article  I,  section  10,  ^^^' 
providing  that ' '  no  State  shall,  without  the 
consent  of  the  Congress,  lay  any  imposts  or  duties  on 
imports  or  exports,  except  what  may  be  absolutely 
necessary  for  executing  its  inspection  laws;  and 
the  net  produce  of  all  duties  and  imposts  laid  by 
any  State  on  imports  or  exports  shall  be  for  the 
use  of  the  treasury  of  the  United  States;  and  all 
such  laws  shall  be  subject  to  the  revision  and  control 
of  the  Congress/' 

Chief  Justice  Marshall,  in  an  early  case,^  pointed  Limitatioa. 

^  ^  7     jr  on  taxing 

out  that  this  clause  is  to  be  considered  as  part  of  ?°^^It?iiE. 
the  taxing  power  and  not  as  part  of  the  power  to  mer??' 
regulate  commerce,  and  that,  the  power  having  been 
given  to  Congress  '^  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises,''  it  was  probable  that  the 
Constitutional  Convention  was  of  the  opinion  that 
a  State  might  impose  duties  on  imports  and  exports^ 
if  not  expressly  forbidden.  However  this  may  be, 
it  can  hardly  be  doubted  that,  even  in  the  absence  of 
this  prohibition,  the  same  rule  that  is  applied  to 
goods  received  from  other  States  would  be  applied 
to  imports  from  foreign  countries,  under  the  power 
granted  to  Congress  to  regulate  commerce  *^  with 
foreign  nations,  and  among  the  several   States,  "^' 

1  Gibbons  v.  Ogdeii,  (1824)  9  Wheat.  (U.  S.)  1. 


264  REGULATION    OF    COMMERCE 


definitions. 


Chapter    which  is,  as  is  hereafter  showii,^  that  the  goods  re- 

'      ceived  from  other  States  cannot  be  discriminated 

against  by  taxes  imposed  upon  them  on  accomit  of 
their  nondomestic  origin.  But  this  prohibition  on 
the  State  to  lay  imposts  or  duties  on  imports  or 
exports  does  not  permit  imports  to  be  taxed  even 
as  property  within  the  State,  until  after  they  cease 
to  be  imports  by  being  mingled  with  other  property 
in  the  State.^ 
Meaning  of  The  meaning  of  the  words  **  imposts  or  duties 
ckEf~  on  imports  or  exports  "  was  thus  stated  by  Chief 
Mare^au's  J  usticc  Marshall :  *  "'  An  impost,  or  duty  on  imports, 
is  a  custom  or  a  tax  levied  on  articles  brought  into  a 
country,  and  is  most  usually  secured  before  the  im- 
porter is  allowed  to  exercise  his  rights  of  ownership 
over  them,  because  evasions  of  the  law  can  be  pre- 
vented more  certainly  by  executing  it  while  the  arti- 
cles are  in  its  custody.  It  would  not,  however,  be 
less  an  impost  or  duty  on  the  articles,  if  it  were  to 
be  levied  on  them  after  they  were  landed.  The  pol- 
icy and  consequent  practice  of  levying  or  securing 
the  duty  before  or  on  entering  the  port  does  not 
limit  the  power  to  that  state  of  things,  nor,  conse- 
quently, the  prohibition,  unless  the  true  meaning 
of  the  clause  so  confines  it.  What,  then,  are  *  im- 
ports '  ?  The  lexicons  inform  us,  they  are  '  things 
imported.'  If  we  appeal  to  usage  for  the  meaning 
of  the  word,  we  shall  receive  the  same  answer.  They 
are  the  articles  themselves  which  are  brought  into 
the  country.  *  A  duty  on  imports,'  then,  is  not 
merely  a  duty  on  the  act  of  importation,  but  is  a 
duty  on  the  thing  imported.    It  is  not,  taken  in  its 

2  See  tn^ro,  p.  315. 
«  See  inira,  p.  292. 
«  Brown  t;.  Maryland,  (1827)  12  Wheat.  (U.  S.)  419. 


REGULATION    OF    COMMERCE  265 


literal  sense,  confined  to  a  duty  levied  while  the    Chapter 

.  XIV 

article  is  entering  the  country,  but  extends  to  a  |_^ 

duty  levied  after  it  has  entered  the  country. '  *  But 
at  the  close  of  the  opinion,  the  case  holding  that  a 
State  statute  taxing,  by  way  of  discrimination,  im- 
porters who  sold,  by  wholesale,  foreign  goods,  was 
repugnant  to  this  clause,  the  chief  justice  remarked : 
**  It  may  be  proper  to  add,  that  we  suppose  the 
principles  laid  down  in  this  case,  to  apply  equally 
to  importations  from  a  sister  State/*  This  casual 
remark,  in  connection  with  the  particular  holding, 
seems  to  have  been  misunderstood,  and  left  open 
the  question  whether  the  words  **  imports  and  ex- 
ports '*  include  importations  from  other  States. 

The  words  **  imposts,"  **  imports,"  and  **  ex-  similar 

^  '  ^  '  ^  words  pre- 

ports, ' '  being  frequently  used  in  the  Constitution,  if  have^Smuar 
there  is  a  clear  idea  of  what  either  word  means  in  "^^^^^^ff- 
any  particular  connection  in  which  it  may  be  found, 
this  furnishes  a  satisfactory  test  of  its  definition  in 
other  parts  of  the  same  instrument.  Referring  to 
that  clause  of  Article  I,  section  8,  which  provides 
that  ^'  the  Congress  shall  have  power  to  lay  and 
collect  taxes,  duties,  imposts,  and  excises,  .  .  . 
but  all  duties,  imposts,  and  excises  shall  be  uniform 
throughout  the  United  States,"  Mr.  Justice  Miller, 
speaking  for  the  court  in  Woodruff  v.  Parham^ 
said :  *  ^  Is  the  word '  impost,'  here  used,  intended  to 
confer  upon  Congress  a  distinct  power  to  levy  a  tax 
upon  all  goods  or  merchandise  carried  from  one 
State  into  another?  Or  is  the  power  limited  to 
duties  on  foreign  imports?  If  the  former  be  in- 
tended, then  the  power  conferred  is  curiously  ren- 
dered nugatory  by  the  subsequent  clause  of  the 

I    «  (1868)  8  Wall.   (U.  S.)   123. 


266  REGULATION   OF    COMMERCE 


Cha^r    ninth  section,  which  declares  that  no  tax  shall  be 

'__  laid  on  articles  exported  from  any  State,  for  no 

article  can  be  imported  from  one  State  into  another 
which  is  not,  at  the  same  time,  exported  from  the 
former.     But  if  we  give  to  the  word  *  imposts,*  as 
used  in  the  first-mentioned  clause,  the  definition  of 
Chief  Justice  Marshall,  and  to  the  word  *  export  '  the 
corresponding  idea  of  something  carried  out  of  the 
United  States,  we  have,  in  the  power  to  lay  duties 
en  imports  from  abroad,  and  the  prohibition  to  lay 
such  duties  on  exports  to  other  countries,  the  power 
satnewords  and  its  limitations  concerning  imposts. '*      In  the 
cSifidwi.   Articles  of  Confederation,  also,  it  was  provided  that 
^°"*  no  State  should  lay  any  imposts  or  duties  which 

might  interfere  with  any  stipulation  in  treaties  en- 
tered into  by  the  United  States,  and  that  no  treaty 
of  connnerce  should  be  made  whereby  the  legisla- 
tive power  of  the  respective  States  should  be  re- 
strained from  imposing  such  imposts  and  duties 
on  foreigners  as  their  own  people  were  subjected 
to,  or  from  prohibiting  the  exportation  or  importa- 
tion of  any  species  of  goods  or  commodities  what- 
soever; and  **  in  these  two  articles,*'  said  the  court 
further,  **  the  words  *  imports,'  *  exports,'  and  ^  im- 
posts '  are  used  with  exclusive  reference  to  foreign 
trade,  because  they  have  regard  only  to  the  treaty- 
making  power  of  the  federation."  From  the  neces- 
sary interpretation  of  these  clauses,  and  the  fact  that 
one  of  the  chief  reasons  for  assembling  the  Constitu- 
tional Convention  was  the  necessity  of  vesting  in 
Congress  the  power  to  levy  duties  on  foreign  goods 
and  of  imposing  a  restraint  upon  the  States  in  that 
respect,  the  word  **  imports  "  in  the  clause  under 
consideration  must  refer  to  goods  imported  from 
foreign  countries  and  not  to  goods  imported  from 


persons. 


REGULATION   OF   COMMERCE  267 

other  States,  and  the  word  **  exports  ''  has  a  cor-    Chapter 

relative  meaning.^  '_^ 

The  words  refer  to  property,  in  regard  to  which  words  re- 
some  one  is  owner  and  is  either  the  importer  or  ex-  erty.^not  to 
porter,  and  not  to  persons.  The  language  of  Article 
I,  section  9,  that  ^'  the  migration  or  importation 
of  snch  persons  as  any  of  the  States  now  existing 
shall  think  proper  to  admit,  shall  not  be  prohibited 
by  the  Congress  prior  to  the  year  one  thousand 
eight  hundred  and  eight,  but  a  tax  or  duty  may  be 
imposed  on  such  importation,  not  exceeding  ten  dol- 
lars for  each  person,''  was  relied  on  in  People  v, 
Compagnie  Generate  Transatlantique,'^  to  sustain 
a  contention  that  the  words  **  imports  "  and  ''  ex- 
ports ''  are  applicable  to  persons  as  well  as  prop- 
erty. But  Mr.  Justice  Miller  said:  ^*  There  has 
never  been  any  doubt  that  this  clause  had  exclusive 
reference  to  persons  of  the  African  race.  The  two 
words  *  migration  '  and  *  importation  '  refer  to  the 
different  conditions  of  this  race  as  regards  freedom 
and  slavery.  When  the  free  black  man  came  here 
he  migrated ;  when  the  slave  came,  he  was  imported. 
The  latter  was  property,  and  was  imported  by  his 
owner  as  other  property,  and  a  duty  could  be  im- 
posed on  him  as  an  import.  We  conclude  that  free 
human  beings  are  not  imports  "  within  the  meaning 
of  the  Constitution.^ 

6  See  also  Austin  v.  Tennessee,  (1900)  179  U.  S.  343;  Patapsco 
Guano  Co.  v.  North  Carolina  Board  of  Agriculture,  (1898)  171 
U.  S.  345;  Pittsburg,  etc..  Coal  Co.  v.  Bates,  (1895)  156  U.  S.  577; 
Coe  V.  Errol,  (1886)  116  U.  S.  517;  Brown  v.  Houston,  (1885)  114 
U.  S.  622. 

7  (1882)   107  U.  S.  59. 

8  See  Crandall  r.  Nevada,  (1867)  6  Wall.  (U.  S.)  35;  wherein 
it  was  held  that  while  a  statute  of  Nevada,  imposing  a  capitation 
tax  upon  passengers  leaving  the  State  by  the  means  furnished  by 
common  carriers,   and  requiring  that   the  carriers   should   pay  the 


268 


REGULATION   OF    COMMERCE 


Chapter 
XIV. 


Considered 
in  other 
parts  of 
this  work. 


By  reason  of  its  close  connection  with  the  power 
granted  to  Congress  to  regulate  commerce,  and  the 
resulting  restriction  on  the  taxing  power  of  the 
States,  the  application  of  this  express  prohibition 
has  occasionally  arisen  in  particular  connections, 
where  it  was  urged  that  the  taxation  under  consid- 
eration violated  both  clauses.^ 


tax,  could  not  be  declared  a  violation  of  the  commerce  clause  or  of 
the  clause  prohibiting  a  State  from  laying  any  imposts  or  duties 
on  imports  or  exports,  it  was  void  as  tending  to  embarrass  the 
operations  of  the  national  government. 

9  Consult  the  index  under  Imports  and  ExportSy  and  see  espe- 
cially infra,  pp.  292,  309,  322,  324. 


CHAPTER  XV. 
DUTIES    OF    TONNAGE. 

THE  last  clause  of  Article  I,  section  10,  of  the    C^ter 
Federal  Constitution,  provides,  in  part,  that  ' 

*^  no  State  shall,  without  the  consent  of  Con-  Asaiimi- 
gress,  lay  any  duty  of  tonnage. "  As  to  the  power  of  the  tLIng 
Congress  in  this  regard,  Chief  Justice  Marshall, 
declaring  that  this  is  a  restriction  on  the  taxing 
power  and  not  on  the  power  to  regulate  commerce, 
said,  in  Gibbons  v.  Ogden:^  **  This  tax  may  be 
imposed  by  a  State,  with  the  consent  of  Congress; 
and  it  may  be  admitted  that  Congress  cannot  give 
a  right  to  a  State,  in  virtue  of  its  own  powers. 
But  a  duty  of  tonnage  being  part  of  the  power 
of  imposing  taxes,  its  prohibition  may  certainly 
be  made  to  depend  on  Congress,  without  afford- 
ing any  implication  respecting  a  power  to  regu- 
late commerce.  It  is  true  that  duties  may  often 
be,  and  in  fact  often  are,  imposed  on  tonnage,  with 
a  view  to  the  regulation  of  commerce ;  but  they  may 
be  also  imposed  with  a  view  to  revenue ;  and  it  was, 
therefore,  a  prudent  precaution  to  prohibit  the 
States  from  exercising  this  power. ' ' 

A  duty  of  tonnage  within  the  meaning  of  the  what  con- 
Constitution  has  been  defined  to  be  *  ^  a  charge  upon  duty  of 
a  vessel,  according  to  its  tonnage,  as  an  instrument 
of  commerce,  for  entering  or  leaving  a  port,  or 
navigating  the  public  waters  of  the  country. ' '  ^   ^^y 

1  (1824)  9  Wheat.  (U.  S.)   1. 

2  Per  Mr.  Justice  Field,  in  Huse  v.  Glover,  (1886)  119  U.  S.  543. 


270  REGULATION    OF    COMMERCE 

Chapter    charge  or  burden  which  in  its  essence  is  a  contribu- 
_  tion  claimed  for  the  privilege  of  entering  a  port 

or  remaining  in  it,  or  departing  from  it,  imposed 
by  the  authority  of  the  State,  is  within  the  prohibi- 
tion.^ As  will  be  seen  later,  while  a  tax  estimated 
on  the  tonnage  is  one  of  the  tests,  yet  it  is  not  a 
necessary  element  of  a  **  duty  of  tonnage,*'  as  any 
tax  for  the  privilege  of  entering  a  port  and  navi- 
gating the  navigable  waters  of  the  State  is,  in  a 
constitutional  sense,  a  '^  duty  of  tonnage.*'  By  an 
Act  of  Congress  *  the  tonnage  of  a  vessel  is  defined 
to  be  the  entire  internal  cubical  capacity,  or  con- 
tents of  the  ship  or  vessel  expressed  in  tons  of  one 
hundred  cubical  feet  each,  as  estimated  by  pre- 
scribed rules  of  admeasurement  and  computation. 
Taxation  of        Ou  the  Qucstion  of  the  validity  of  the  taxation 

Tcssels  as 

property,  of  vcsscls  accordiug  to  their  value  as  personal  prop- 
erty by  a  city  in  which  a  company  owning  vessels 
has  its  principal  office,  Mr.  Justice  Clifford,  speak- 
ing for  the  court  in  Wheeling,  etc.,  Transp.  Co.  v. 
Wheeling,^  said  that  ^^  tonnage  duties  on  ships  by 
the  States  are  expressly  prohibited,  but  taxes  levied 
by  a  State  upon  ships  or  vessels  owned  by  the  citi- 
zens of  the  State  as  property,  based  on  a  valuation 
of  the  same  as  property,  are  not  within  the  prohi- 
bition, for  the  reason  that  the  prohibition,  when 
properly  construed,  does  not  extend  to  the  invest- 
ments of  the  citizens  in  such  structures.**  But  a 
tax  on  vessels  plying  in  the  navigable  waters  of  a 

8  Keokuk  Northern  Line  Packet  Co.  v.  Keokuk,  (1877)  95 
U.  S.  80. 

♦  Act  of  May  6,  1864,  c.  83,  carried  forward  into  section  4153, 
Rev.  Stat.  U.  S.,  and  amended  by  the  Acta  of  August  5,  1882,  c.  398, 
§  1;  June  19,  1886,  c.  421,  §  5,  and  March  2,  1895,  c.  173,  S  1. 
Sec  7  Fed.  Stat.  Annot.  21. 

8  (1878)  99  U.  S.  273.    See  also  infra,  p.  279,  note  3. 


REGULATION    OF    COMMERCE  271 

State,  proportioned  to  the  tonnage,  is  void  as  a    Chapter 
tonnage  tax  as  applied  to  vessels,  duly  enrolled  and  ' 

licensed  under  Acts  of  Congress,  owned  by  a  citizen  Propor- 
of  the  State,  and  used  exclusively  in  the  transporta-  tSTnag^ 
tion  of  freight  and  passengers  between  ports,  points, 
or  landings  within  the  limits  of  the  State,  on  navi- 
gable waters.  To  the  suggestion  that,  in  imposing 
such  a  tax,  the  legislature  merely  referred  to  the 
registered  tonnage  of  the  vessels  as  a  way  or  mode 
to  determine  and  ascertain  the  tax  to  be  assessed 
on  the  steamboats,  and  to  furnish  a  rule  or  rate  to 
govern  the  assessors  in  the  performance  of  their 
duties,  the  court,  through  Mr.  Justice  Clifford  in 
the  State  Tonnage  Tax  Cases ^  said:  '^  Suppose 
that  could  be  admitted,  it  would  not  have  much 
tendency  to  strengthen  the  argument  for  the  defend- 
ant, as  the  suggestion  concedes  what  is  obvious 
from  the  schedule,  that  the  taxes  are  levied  with- 
out any  regard  to  the  value  of  the  steamboats.  But 
the  proposition  involved  in  the  suggestion  cannot 
be  admitted,  as,  by  the  very  terms  of  the  act,  the 
tax  is  levied  on  the  steamboats  wholly  irrespective 
of  the  value  of  the  vessels  as  property,  and  solely 
and  exclusively  on  the  basis  of  their  cubical  contents 
as  ascertained  by  the  rules  of  admeasurement  and 
computation  prescribed  by  the  Act  of  Congress.'' 
A  New  York  statute  providing  that  any  vessel 
which  should  enter  the  port  of  New  York,  or  load 
or  unload  or  make  fast  to  any  wharf  therein,  should 
pay  as  fees  a  certain  amount,  according  to  the  class 
of  the  vessel,  to  be  computed  from  the  tonnage  ex- 
pressed in  the  registers  of  enrolment  of  such  vessels, 
was  held  to  be  objectionable  as  exacting  a  tax  where 
there  were  no  services  rendered  or  offered  to  be 

«  (1870)   12  Wall.  (U.  S.)  204. 


272 


REGULATION   OF   COMMERCE 


Chapter 
XV 


Fees 
charged 
when  no 
services 
rendered. 


Wharfage 


rendered.  Either  of  the  three  disjunctive  conditions 
brought  a  vessel  within  the  statute  and  made  her 
liable  to  the  burden  prescribed^  And  a  Louisiana 
statute  enacted  that  the  master  and  wardens  of  the 
port  of  New  Orleans  should  be  entitled  to  demand 
and  receive,  in  addition  to  other  fees,  the  sum  of  ^ve 
dollars,  whether  called  on  to  perform  any  service 
or  not,  for  every  vessel  arriving  in  that  port.  The 
tax  was  held  to  be  in  a  fair  sense  of  the  word  a 
duty  of  tonnage,  the  court  saying:  *^  In  the  most 
obvious  and  general  sense,  it  is  true,  those  words 
describe  a  duty  proportioned  to  the  tonnage  of  the 
vessel;  a  certain  rate  on  each  ton.  But  it  seems 
plain  that,  taken  in  this  restricted  sense,  the  con- 
stitutional provision  would  not  fully  accomplish  its 
intent.  The  general  prohibition  upon  the  States 
against  levying  duties  on  imports  or  exports  would 
have  been  ineffectual  if  it  had  not  been  extended  to 
duties  on  the  ships  which  serve  as  the  vehicles  of 
conveyance.  This  extension  was  doubtless  intended 
by  the  prohibition  of  any  duty  of  tonnage.  It  was 
not  only  a  pro  rata  tax  which  was  prohibited,  but 
any  duty  on  the  ship,  whether  a  fixed  sum  upon  its 
vrhole  tonnage  or  a  sum  to  be  ascertained  by  com- 
paring the  amount  of  tonnage  with  the  rate  of 
duty.  "8 

Wharfage,  however,  is  not  a  duty  of  tonnage. 
The  fact  that  the  rates  charged  are  graduated  by  the 
size  or  tonnage  of  the  vessel  is  of  no  consequence 
in  this  connection.^    As  was  said  by  the  court  in 

Tinman  Steamship  Co.  v.  Tinker,  (1876)  94  U.  S.  238.  See 
also  supra,  p,  205. 

8  Southern  Steamship  Co.  v.  Portwardens,  (1867)  6  Wall.  (U. 
S.)   31. 

•  Ouachita  Packet  Co.  v,  Aiken,  (1887)  121  U.  S.  444;  Cin- 
cinnati, etc.,  Packet  Co.  v.  Catlettsburg,  (1881)  105  U.  S.  559;  North- 


REGULATION    OF    COMMERCE  273 

c 

Parkersburg,    etc.,    Transp.    Co.    v.    Parhershurg^    Copter 
*'  Whether  a  charge  imposed  is  a  charge  of  wharf-  ' 

age,  or  a  duty  of  tonnage,  must  be  determined  by 
the  terms  of  the  ordinance  or  regulation  which  im- 
poses it.  They  are  not  the  same  thing;  a  duty  of 
tonnage  is  a  charge  for  the  privilege  of  entering, 
or  trading  or  lying  in,  a  port  or  harbor;  wharfage 
is  a  charge  for  the  use  of  a  wharf.  Exorbitant 
wharfage  may  have  a  similar  effect  as  a  burden  on 
commerce  as  a  duty  of  tonnage  has ;  but  it  is  exor- 
bitant wharfage,  and  not  a  duty  of  tonnage;  and 
the  remedy  for  the  one  is  different  from  the  remedy 
for  the  other.  The  question  whether  it  is  the  one  or 
the  other  is  not  one  of  intent,  but  one  of  fact  and 
law :  of  fact,  as  whether  the  charge  is  made  for  the 
use  of  a  wharf,  or  for  entering  the  port;  of  law, 
as  whether,  according  as  the  fact  is  shown  to  exist, 
it  is  wharfage  or  a  duty  of  tonnage.  The  intent  is 
not  material,  and  is  not  traversable.'' 

*A  municipal  corporation  of  a  State,  having  by  Jjj^;??^ 
the  law  of  its  organization  an  exclusive  right  to  make 
wharves,  collect  wharfage,  and  regulate  wharfage 
rates,  can  charge  and  collect  wharfage  proportioned 
to  the  tonnage  of  the  vessels  from  the  owners  of 
enrolled  and  licensed  steamboats  mooring  and  land- 
ing at  the  wharves  constructed  on  the  banks  of  a 
navigable  river.  In  Keokuk  Northern  Line  Packet 
Co.  V.  Keokuk,^  the  court  said:  ''  The  prohibition 
to  the  State  against  the  imposition  of  a  duty  of  ton- 
nage was  designed  to  guard  against  local  hindrances 
to  trade  and  carriage  by  vessels,  not  to  relieve  them 

western  Union  Packet  Co.  v.  St.  Louis,  (1879)  100  U.  S.  423;  Vicks- 
burg  V.  Tobin,  (1879)   100  U.  S.  430. 

1  (1882)   107  U.  S.  691. 

2  (1877)  95  U.  S.  80. 

18 


274  BEGULATION   OF    COMMERCE 


* 


Chapter    from  liability  to  claims  for  assistance  rendered  and 

'__  facilities  furnished  for  trade  and  commerce.    It  is 

a  tax  or  a  duty  that  is  prohibited;  something  im- 
posed by  virtue  of  sovereignty,  not  claimed  in  right 
of  proprietorship.  Wharfage  is  of  the  latter  char- 
acter.'' But  in  Cannon  v.  New  Orleans,^  an  ordi- 
nance imposing  a  tax  so  proportioned  was  held  in- 
valid, not  because  the  charge  was  for  wharfage,  nor 
even  because  it  was  proportioned  to  the  tonnage 
of  the  vessels,  but  because  the  charge  was  for  stop- 
ping in  the  harbor  though  no  wharf  was  used. 
Tolls  for  In  the  same  way  that  charges  for  wharfage, 

pro^d  graduated  by  the  tonnage  within  the  meaning  of 
the  Constitution,  are  not  duties  of  tonnage,  the 
exaction  of  tolls  for  passing  through  improved 
waters,  as  compensation  for  the  use  of  artificial 
facilities  constructed,  is  not  a  tonnage  duty  though 
the  rates  are  prescribed  according  to  the  tonnage 
of  the  vessels  and  the  amount  of  freight  carried.* 
Jerry^  A  Hccnse  f  cc  by  a  State  either  directly  or  through 

one  of  its  municipal  corporations  upon  the  keepers 
of  ferries  living  in  the  State,  for  boats  owned  by 
them  and  used  in  ferrying  passengers  and  goods, 
is  not  a  tonnage  tax.  Such  a  tax  is  levied  on  the 
ferry  keeper  and  not  on  the  ferry  boat,  and  is  not 
graduated  by  the  tonnage  of  the  ferry  boats,  bein^ 
the  same  whether  the  boats  are  of  large  or  small 
carrying  capacity.  This  last,  although  not  a  con- 
clusive circumstance,  is  one  of  the  tests  applied  to 
•determine  whether  a  tax  is  a  tax  on  tonnage  or  not.* 
In  Morgan's  Steamship  Co.  v.  Louisiana  Board 

»  (1874)  20  Wall.  (U.  b.)  577. 
*Hu8e  V.  Glover,  (1886)   119  U.  S.  643. 

8  Wiggins  Ferry  Co.  v.  East  St.  Louis,   (1882)    107  U.  S.  366. 
iSee  also  infra,  p.  297. 


REGULATION   OF   COMMERCE  275 

of  Health,^  it  was  held  that  a  fee  exacted  for  the    Copter 
examination  which  the  quarantine  laws  of  the  State  ' 

require  in  regard  to  all  vessels  passing  a  quarantine  Quarantine 
station  is  not  a  tonnage  tax.  Mr.  Justice  Miller,  in 
delivering  the  opinion  of  the  court  in  that  case, 
said:  **  We  are  of  opinion  that  the  fee  complained 
of  is  not  a  tonnage  tax,  that,  in  fact,  it  is  not  a  tax 
within  the  true  meaning  of  that  word  as  used  in  the 
Constitution,  but  is  a  compensation  for  a  service 
rendered,  as  part  of  the  quarantine  system  of  all 
countries,  to  the  vessel  which  receives  the  certifi- 
cate that  declares  it  free  from  further  quarantine 
requirements/'  But  a  tax  on  every  vessel  arriving  when  no 
at  a  quarantine  station,  whether  any  service  is  rendered.! 
rendered  or  not,  in  order  to  defray  the  expenses  of 
her  quarantine  regulations,  assessed  at  five  dollars 
for  the  first  hundred  tons  of  her  capacity,  and  one 
and  a  half  cents  for  every  additional  ton,  is  a  ton- 
nage tax.^ 

6  (1886)  118  U.  S.  455. 

TPeete  v.  Morgan,  (1873)  19  Wall.  (U.  S.)  581.     See  also  as  to 
inspection  and  quarantine  charges  and  fees,  supra,  p.  105. 


CHAPTER  XVI. 

TAXATION    OF   PROPERTY. 

GENERAL  POWER  OF  A  STATE  TO  TAX  PROPERTY  WITHIN 
ITS  LIMITS. 

Chapter    /^RDINARY    property    taxes,    upon    property 
^^^       \^    having  a  situs  within  its  territory,  may  be 
Of  prop-  taxed  by  a  State,^  though  the  property  may 

fmerstafe'"  be  employed  in  interstate  commerce.^  A  tax  or 
commlrle.  other  burdeu  imposed  upon  the  property  of  either  a 
domestic  or  a  foreign  corporation  because  it  is  used 
to  carry  on  interstate  or  foreign  commerce  is  in- 
valid as  an  interference  with  the  power  of  Congress 
in  the  regulation  of  such  commerce.^  But  a  State 
may  tax  all  property,  real  and  personal,  within  its 
borders,  belonging  to  persons  or  foreign  or  domes- 
tic corporations,  although  employed  in  interstate 
or  foreign  commerce,  to  the  same  extent  that  other 
property  within  its  jurisdiction  is  taxed.* 

1  Property  in  the  shape  of  bonds  and  credits  may  be  taxed.  State 
Board  of  Assessors  v.  Comptoir  Nat.  d'Escompte,  (1903)  191  U.  S. 
388;  New  Orleans  v.  Stempel,  (1899)  175  U.  S.  309;  Kirtland  V. 
Hotchkiss,    (1879)    100  U.  S.  491. 

A  tax  imposed  by  a  State  statute  on  legacies  is  not  void  as  to  a 
legatee  who  is  neither  a  citizen  of  the  United  States  nor  domiciled 
in  that  State.     Mager  v.  Grima,  (1850)  8  How.  (U.  S.)  490. 

2  Atlantic,  etc.,  Tel.  Co.  v.  Philadelphia,  (1903)   190  U.  S.  160. 
«  Gloucester  Ferry  Co.  v.  Pennsylvania,  (1885)   114  U.  S.  196. 

♦  Western  Union  Tel.  Co.  v.  Taggart,  (1896)  163  U.  S.  1;  Pull- 
man's Palace  Car  Co.  v.  Pennsylvania,  (1891)  141  U.  S.  18;  Marye 
V.  Baltimore,  etc.,  R.  Co.,  (1888)  127  U.  S.  117;  Delaware  Railroad 
Tax,  (1873)  18  Wall.  (U.  S.)  206. 


REGULATION    OF    COMMERCE  277 

In   assessing   such  property  for   taxation,   the  ^^^^^^ 

State  is  not  limited  to  the  cost  of  the  property,  but  1_ 

may  assess  it  on  the  value  which  it  has  as  used  and  vaiue 

which  results  from  its  use,  notwithstanding  that  its  from  use  in 


commerce. 


road. 


increased  value  may  result  from  use  in  interstate 
commerce.^ 

A  State  may  levy  a  tax  on  the  rolling  stock  and  Soik^lnd 
other  movable  personal  property  brought  into  and  perlonil 
used  in  the  State  by  a  railroad  company,^  sleeping  ^''^p^^^* 
car  company,"^  or  refrigerator  car  company^  doing 
business  therein,  and  where  the  specific  and  individ- 
ual items  of  property  so  used  and  employed  are  not 
continuously  the  same  but  are  constantly  changing 
according  to  the  exigencies  of  the  business,  the  tax 
may  be  fixed  by  an  appraisement  and  valuation  of 
the  average  amount  of  property  thus  habitually 
used.^ 

The  State  of  Pennsylvania  imposed  taxes  on  Tousre- 

t  t*  1  rt    ccived  for 

tolls  paid  by  one  company  to  another  for  the  use  of  ^^°^^^^^' 
its  railroad,  and  the  State  Supreme  Court  thus  de- 
fined the  term  *^  tolls,"  as  used  in  the  tax  laws  of 
that  State:    **  Toll  is  a  tribute  or  custom  paid  for 
passage,  not  for  carriage  —  always  something  taken 

B  Postal  Tei.  Cable  Co.  v.  Adams,  (1895)  155  U.  S.  688;  Cleve- 
land, etc.,  R.  Co.  V.  Backus,  (1894)   154  U.  S.  439. 

6Marye  v.  Baltimore,  etc.,  R.  Co.,  (1888)   127  U.  S.  117. 

7  Pullman's  Palace  Car  Co.  v.  Pennsylvania,  (1891)  141  U.  S. 
18;  Pullman's  Palace  Car  Co.  v.  Twombly,  (1887)  29  Fed.  Rep.  658. 

8  Union  Refrigerator  Transit  Co.  v.  Kentucky,  (1905)  199  U.  S. 
194;  Union  Refrigerator  Transit  Co.  v.  Lynch,  (1900)  177  U.  S. 
149;  American  Refrigerator  Transit  Co.  v.  Hall,  (1899)  174  U.  S.  70. 

9  When  the  complaint  contained  no  averment  as  to  the  average 
number  of  cars  used  in  the  State,  the  court  said :  "  The  presumption 
is  that  the  action  of  the  taxing  officers  was  correct  and  regular,  and 
that  the  number  of  cars  assessed  by  the  State  board  of  equalization 
was  the  average  number  used  and  employed  by  plaintiff  in  error  in 
the  State  of  Utah  during  1897."  Union  Refrigerator  Transit  Co.  v. 
Lynch,  (1900)  177  U.  S.  149. 


278  REGULATION   OF    COMMERCE 

Chapter    for  a  liberty  or  privilege,  not  for  a  service;  and 

[__  snch  is  the  common  understanding  of  the  word. 

Nobody  supposes  that  tolls  taken  by  a  turnpike  or 
canal  company  include  charges  for  transportation, 
or  that  they  are  anything  more  than  an  excise  de- 
manded and  paid  for  the  privilege  of  using  the 
way.'*  In  holding  the  tax  to  be  valid,  Mr.  Justice 
Shiras,  speaking  for  the  court  in  New  York,  etc.,  R. 
Co.  V.  Pennsylvania,^  said:  "  The  tax  complained  of 
is  not  laid  on  the  transportation  of  the  subjects  of 
interstate  commerce,  or  on  receipts  derived  there- 
from, or  on  the  occupation  or  business  of  carrying 
it  on.  It  is  a  tax  laid  upon  the  corporation  on  ac- 
count of  its  property  in  a  railroad,  and  which  tax 
is  measured  by  a  reference  to  the  tolls  received. 
The  State  has  not  sought  to  interfere  with  the  agree- 
ment between  the  contracting  parties  in  the  matter 
of  establishing  the  tolls.  Their  power  to  fix  the 
terms  upon  which  the  one  company  may  grant  to  the 
other  the  right  to  use  its  road  is  not  denied  or  in 
any  way  controlled.  It  is  argued  that  the  imposi- 
tion of  a  tax  on  tolls  might  lead  to  increasing  them 
in  an  effort  to  throw  their  burthen  on  the  carrying 
company.  Such  a  result  is  merely  conjectural,  and, 
at  all  events,  too  remote  and  indirect  to  be  an  in- 
terference with  interstate  commerce.  The  inter- 
ference with  the  commercial  power  must  be  direct, 
and  not  the  mere  incidental  effect  of  the  require- 
ment of  the  usual  proportional  contribution  to  pub- 
lic maintenance.'* 
Value  of  In  estimating  the  value  of  the  property  of  a 

compSTy't    telegraph  company  situate  within  a  State,  it  may 
be  regarded  not  abstractly  or  strictly  locally,  but 

1  (1895)   158  U.  S.  431. 


REGULATION   OF    COMMERCE  279 

as  a  part  of  a  system  operated  in  other  States,  and    Chapter 

a  State  is  not  precluded  from  taxing  the  property  

because  the  State  had  not  created  the  company  or 
conferred  a  franchise  upon  it,  or  because  the  com- 
pany has  derived  rights  or  privileges  under  an  Act 
of  Congress,  or  is  engaged  in  interstate  commerce.^ 

A  ship  or  vessel  engaged  in  interstate  or  foreign  ships. 
commerce  may  be  taxed  as  other  personal  property,* 

2  Western  Union  Tel.  Co.  v.  Missouri,  (1903)  190  U.  S.  412.  See 
further,  infra,  p.  282. 

A  statute  imposing  a  tax  equal  to  one  dollar  per  mile  for  the 
line  of  poles  and  first  wire  and  fifty  cents  for  each  additional  wire 
was  considered  to  be  invalid  as  fixing  arbitrary  sums  without  regard 
to  the  value  of  the  property,  and  as  in  effect  a  tax  on  the  privilege 
of  doing  business  in  the  State.     Com.  v.  Smith,  (1891)  92  Ky.  38. 

A  remedy  by  injunction  directing  the  officers  and  agents  of  a 
telegraph  company  to  desist  from  the  prosecution  of  its  business 
until  taxes  are  paid  would  violate  the  provisions  of  an  Act  of  Con- 
gress which  says  that  the  company  accepting  its  provisions  "  shall 
have  the  right  to  construct,  maintain,  and  operate  lines  of  telegraph 
through  and  over  any  portion  of  the  public  domain  of  the  United 
States,  over  and  along  any  of  the  military  or  post-roads  of  the 
United  States."  If  a  resort  to  a  judicial  proceeding  to  collect  a 
tax  is  deemed  expedient,  there  remain  to  the  court  all  the  ordinary 
means  of  enforcing  its  judgment  —  executions,  sequestration,  and  any 
other  appropriate  remedy  in  chancery.  Western  Union  Tel.  Co.  v. 
Atty.-Gen.,  (1888)   125  U.  S.  530. 

3  The  enrolment  of  a  ship  or  vessel  does  not  exempt  the  owner  of 
the  same  from  taxation  for  his  interest  in  the  ship  or  vessel  as 
property,  upon  a  valuation  of  the  same,  as  in  the  case  of  other  per- 
sonal property.  Wheeling,  etc.,  Transp.  Co.  v.  Wheeling,  (1878)  99 
U.  S.  273.  See  also  Old  Dominion  Steamship  Co.  v.  Virginia,  (1905> 
198  U.  S.  299;  Moran  v.  New  Orleans,  (1884)  112  U.  S.  69. 

A  tax  on  money  or  capital  invested  in  shipping  is  valid.  People 
V.  Tax,  etc.,  Com'rs,  (1866)  48  Barb.  (N.  Y.)  157;  Perry  v.  Torrence, 
(1838)  8  Ohio  521;  State  v.  Charleston,  (1851)  4  Rich.  L.  (S.  Car.) 
286. 

The  power  of  the  States  to  tax  vessels  engaged  in  commerce  is 
limited  by  the  clause  of  Article  I,  section  10,  of  the  Constitution, 
providing  that  "  no  State  shall,  without  the  consent  of  Congress, 
lay  any  duty  of  tonnage."      See  Moran  v.  New  Orleans,  (1884)   112- 
U.  S.  69;  State  Tonnage  Tax  Cases,  (1870)  12  Wall.  (U.  S.)  204. 

See  also  supra,  p.  270. 


280  REGULATION   OF    COMMERCE 

Copter    but  there  must  be  a  situs  for  the  purpose  of  taxation. 

]__  Section  4141,  Rev.  Stat.  U.  S.,  provides:     '^  Every 

vessel,  except  as  is  hereinafter  provided,  shall  be 
registered  by  the  collector  of  that  collection-dis- 
trict which  includes  the  port  to  which  such  vessel 
shall  belong  at  the  time  of  her  registry ;  which  port 
shall  be  deemed  to  be  that  at  or  nearest  to  which 
the  owner,  if  there  be  but  one,  or,  if  more  than  one, 
the  husband  or  acting  and  managing  owner  of  such 
vessel,  usually  resides. ' '  This  section  creates  what 
may  be  called  the  home  port  of  the  vessel,  —  an 
artificial  situs  which  may  control  the  place  of  taxa- 

Ardiidai     tiou  in  the  absence  of  an  actual  situs  elsewhere. 

SttttS. 

In  Hays  v.  Pacific  Mail  Steamship  Co.,'^  ocean 
steamers  owned  and  registered  in  New  York  and 
regularly  plying  between  Panama  and  San  Fran- 
cisco and  ports  in  Oregon,  remaining  in  those  ports 
no  longer  than  was  necessary  to  land  and  receive 
passengers  and  cargo  and  for  repairs  and  supplies, 
were  held  not  to  be  subject  to  taxation  in  California, 
but  at  the  artificial  situs  established  by  their  regis- 
try.^ And  in  St.  Louis  v.  Wiggins  Ferry  Co.,^  it 
was  held  that  certain  ferry  boats  belonging  to  an 
Illinois  corporation  and  plying  between  East  St. 
Louis,  Illinois,  and  St.  Louis,  Missouri,  were  not 
taxable  in  the  latter  State,  but  at  their  home  port 
in  the  former  State,  the  court  saying  that  a  tax  was 
void  when  there  was  no  jurisdiction  as  to  the  prop- 
erty taxed. 

4  (1854)  17  How.  (U.  S.)  596. 

BSee  also  Morgan  v.  Parham,  (1872)  16  Wall.  (U.  S.)  471,  as 
to  a  steamship  registered  in  New  York,  and  employed  as  a  coasting 
steamer  between  Mobile  and  New  Orleans,  and  regularly  enrolled  as 
a  coaster  in  Mobile.  It  was  held  that  she  was  not  subject  to  taxa- 
tion by  the  State  of  Alabama. 

6  (1870)   11  Wall.  (U.  S.)  423. 


KEGULATION   OF   COMMEECE  281 

But  where  a  vessel,  tliougli  engaged  in  interstate    ^Jl^t^^^ 

commerce,  is  employed  in  such  commerce  wholly  '__ 

within  the  limits  of  a  State,  it  is  subject  to  taxation  Actual  suus 
in  that  State.      Being  engaged  wholly  within  the 
limits  of  a  State,  it  has  an  actual  situs  there  for  the 
purposes  of  taxation,  although  it  may  have  been 
registered  or  enrolled  at  a  port  in  another  State  J 

A  State  may  also  tax  the  property  of  a  bridge  Bridge, 
company,  erected  over  one  of  the  navigable  waters 
of  the  United  States.  The  fact  that  a  bridge  be- 
tween low-water  marks  on  either  side  of  the  river  is 
used  for  purposes  of  interstate  commerce  does  not 
exempt  it  from  taxation,^  and  its  erection  under  the 
authority  or  with  the  consent  of  Congress,^  and  the 
declaration  of  Congress  that  railway  bridges  over 
navigable  rivers  shall  be  regarded  as  post  roads, 
do  not  interfere  with  the  right  of  the  State  to  im- 
pose taxes.^  In  the  case  of  a  bridge  over  a  river 
dividing  two  States,  each  State  may  tax  that  part  of 
the  bridge  within  its  limits,  and  when  the  dividing 
line  between  the  two  is  the  middle  of  the  stream,  it 
is  a  question  of  fact  where  that  line  divides  a  bridge, 
and  it  is  not  within  the  province  of  the  Supreme 
Court  of  the  United  States  to  review  the  findings 
of  the  State  courts  in  regard  to  the  part  assessed 
in  the  State.^ 

7  Old  Dominion  Steamship  Co.  v.  Virginia,  (1905)   198  U.  S.  299. 
Dredges  employed  in  the  improvement  of  navigable  waters  are 

subject  to  taxation  though  owned  by  a  corporation  organized  in 
another  State.  McRae  v.  Bowers  Dredging  Co.,  (1898)  90  Fed. 
Rep.  360. 

8  Henderson  Bridge  Co.  v.  Henderson,   (1891)   141  U.  S.  679. 
•  Henderson  Bridge  Co.  v.  Henderson,   (1899)   173  U.  S.  592. 

1  Henderson  Bridge  Co.  v.  Kentucky,    (1897)    166  U.  S.  150. 

2  Keokuk,  etc.,  Bridge  Co.  v.  Illinois,   (1900)   175  U.  S.  626. 

In  Henderson  Bridge  Co.  v.  Henderson,  (1899)   173  U.  S.  592,  the 
court   said  that  whether  a  municipal   corporation  in  the  State  of 


282 


KEGULATION   OF   COMMERCE 


Chapter 
XVI. 


Proportion 
of  whole 
value  as  a 
basis  for 
taxation. 


APPLICATION    OF    THE    UNIT    RULE. 

As  to  railroad,  telegraph,  sleeping  car,  and  ex- 
press companies,  engaged  in  interstate  commerce^ 
their  property,  in  the  several  States  through  which 
their  lines  or  business  extend,  may  be  valued  as  a 
unit  for  the  purposes  of  taxation,  taking  into  con- 
sideration the  uses  to  which  it  is  put  and  all  the 
elements  making  up  aggregate  value,  and  a  propor- 
tion of  the  whole  fairly  and  properly  ascertained 
may  be  taxed  by  the  particular  State,  without  vio- 
lating any  federal  restriction.  The  valuation  is 
thus  not  confined  to  the  roadbed,  ties,  rails,  and 
spikes  of  the  railroad  company,  or  to  the  horses^ 
wagons,  and  furniture  of  the  express  company,  or 
to  the  poles,  wires,  and  instruments  of  the  telegraph 
company,  or  to  the  cars  of  the  sleeping  car  com- 
pany; but  includes  the  proportionate  part  of  the 
value  resulting  from  the  combination  of  the  means 
by  which  the  business  is  carried  on,  a  value  existing 
to  an  appreciable  extent  throughout  the  entire 
domain  of  operation.  The  rule  applies  to  both 
domestic  and  foreign  corporations.^ 

A  proper  mode  of  ascertaining  the  assessable 
fiJ^^Sue-  value  of  so  much  of  the  whole  property  as  is  situ- 
ated in  a  particular  State  is,  in  the  case  of  rail- 
Kentucky  had  authority  to  tax  so  much  of  the  property  of  a  bridge 
company  as  was  permanently  between  low-water  mark  on  the  Ken- 
tucky shore  and  low-water  mark  on  the  Indiana  shore  of  the  Ohio- 
river  depended  primarily  upon  the  question  whether  the  boundary- 
of  Kentucky  extended  to  low-water  mark  on  the  Indiana  shore.  It 
had  been  settled,  in  Handly  v.  Anthony,  (1820)  5  Wheat.  (U.  S.) 
374,  and  in  Indiana  v.  Kentucky,  (1890)  136  U.  S.  479,  as  to  the 
boundary  between  Kentucky  and  Indiana,  that  the  jurisdiction  of 
Kentucky  extends  to  the  low- water  mark  on  the  Indiana  shore  of 
the  Ohio  river. 

8  Pullman's  Palace  Car  Co.  v.  Pennsylvania,  (1891)  141  U.  S.  18. 


Mode  of 
ascertain- 


BEGULATION   OF   COMMERCE  283 

roads,  to  take  that  part  of  the  value  of  the  entire    Chapter 

road  which  is  measured  by  the  proportion  of  its  _^ 

length  therein  to  the  length  of  the  whole;*  in  the  Telegraph 
ease  of  a  telegraph  company,  to  take  such  a  propor- 
tion of  the  whole  value  of  the  capital  stock  as  the 
length  of  its  lines  within  a  State  bears  to  the  length 
of  all  its  lines  everywhere,  deducting  a  sum  equal  to 
the  value  of  its  real  estate  and  machinery  subject 
to  local  taxation  within  the  State ;  ^  and  in  the  case  sieeping- 

'  car  com- 

of  a  sleeping  car  company,  to  take  such  proportion  p^°J^- 
of  the  capital  stock  as  the  number  of  miles  of  rail- 
road over  which  its  cars  are  run  in  a  particular 
State  bears  to  the  whole  number  of  miles  traversed 
by  them  in  that  and  other  States.^ 

In  the  case  of  express  companies,  a  rule  to  be  Express 

company. 

followed  by  a  State  board  in  makmg  the  assessment, 
that  ^^  in  determining  the  value  of  the  property  of 
said  companies  in  this  State,  to  be  taxed  within  the 
State  and  assessed  as  herein  provided,  said  board 
shall  be  guided  by  the  value  of  said  property  as 
determined  by  the  value  of  the  entire  capital  stock 
of  said  companies,  and  such  other  evidence  and 
rules  as  will  enable  said  board  to  arrive  at  the  true 
value  in  money  of  the  entire  property  of  said  com- 
panies within  the  State  of  Ohio,  in  the  proportion 
which  the  same  bears  to  the  entire  property  of  said 
companies,  as  determined  by  the  value  of  the  capital 
stock  thereof,  and  the  other  evidence  and  rules  as 

*  Cleveland,  etc.,  R.  Co.  v.  Backus,  (1894)   154  U.  S.  439. 

The  rule  was  followed  in  ascertaining  the  value  of  movable  prop- 
erty, and  sustained,  in  Pittsburgh,  etc.,  R.  Co.  v.  Backus,  (1894)  154 
U.  S.  421.  See  also  Maine  v.  Grand  Trunk  R.  Co.,  (1891)  142  U.  S. 
217,  as  to  a  unit  method  of  taxing  the  gross  receipts. 

6  Western  Union  Tel.  Co  v.  Taggart,   (1896)    163  U.  S.  1. 

6  Pullman's  Palace  Car  Co.  v.  Pennsylvania,  (1891)   141  U.  S.  18. 


284  REGULATION   OF   COMMERCE 

Ch^ter  aforesaid,"  was  held  to  be  valid  J  Upon  a  petition 
1_  for  a  rehearing,  this  principle  of  taxation  was  re- 
affirmed. Mr.  Justice  Brewer  wrote  the  opinion  of 
the  court,  and  referred  to  the  fact  that  in  the  city  of 
New  York  were  located  the  headquarters  of  the  cor- 
poration, whose  corporate  property  was  confessedly 
of  the  value  of  $16,000,000  —  a  value  which  could  be 
realized  by  its  stockholders  at  any  moment  they  saw 
fit ;  that  its  tangible  property  and  its  business  were 
scattered  through  many  States,  all  whose  powers 
could  be  invoked  to  protect  its  property  from  tres- 
pass and  secure  it  in  the  peaceful  transaction  of  its 
widely  dispersed  business;  and  that  the  tangible 
property  was  worth  only  $4,000,000.  Answering 
the  contention  that  the  value  of  the  tangible  prop- 
erty in  such  a  case  is  the  limit  of  the  combined 
taxing  power  of  the  States  in  which  the  corporation 
operates,  the  learned  justice  pointed  out  the  injus- 
tice of  asking  those  States  to  protect  property  having 
such  a  high  actual  value,  and  limiting  their  taxing 
power  to  the  value  of  the  tangible  property,  and 
said  that ' '  courts  must  recognize  things  as  they  are 
and  as  possessing  a  value  which  is  accorded  to  them 
in  the  markets  of  the  world,  and  that  no  finespun 
theories  about  situs  should  interfere  to  enable  these 
large  corporations,  whose  business  is  carried  on 
through  many  States,  to  escape  from  bearing  in  each 
State  such  burden  of  taxation  as  a  fair  distribution 
of  the  actual  value  of  their  property  among  those 
States  requires. ' '  ^ 

The  fact  that  a   telegraph  company,   whether 
domestic  or  foreign,  has  accepted  the  provisions  of 

7  Adams  Express  Co.  v.  Ohio  State  Auditor,    (1897)    165  U.  S. 
194.     See  also  Adams  Express  Co.  v.  Kentucky,  (1897)  166  U.  S.  171. 

8  Adams  Express  Co.  v.  Ohio  State  Auditor,  (1897)  166  U.  S.  185. 


EEGULATION   OF   COMMERCE  285 

the  Act  of  Congress  of  July  24,  1866,  ch.  230,  now    Chapter 

embodied  in  §§  5263-5269,  Rev.  Stat.  U.  S.,  does  not 

exempt  it  from  the  operation  of  a  statute  of  a  State  Effect  of 
in  which  it  owns  a  line  of  telegraph,  requiring  it  to  &j[^j?.f^"- 
be  there  taxed  on  such  proportion  only  of  the  whole  comffa^ny  t^ 
value  of  its  capital  stock  as  the  length  of  its  line  in  roldsJiZ' 
that  State  bears  to  the  length  of  its  lines  every- 
where; and  to  prevent  its  whole  tax  in  that  State 
from  amounting  in  any  event  to  more  than  that,  it 
is  provided  that  from  the  taxable  portion  of  the 
value  of  its  capital,  so  ascertained,  shall  be  deducted 
the  value  of  any  property  owned  by  it  in  that  State 
which  is  subject  to  local  taxation  in  the  cities  and 
towns.^  In  Western  Union  Tel,  Co,  v.  Atty,-Gen,^ 
the  court  said  that  the  franchise  of  such  a  company 
to  be  a  corporation  was  derived  not  from  the  Act  of 
Congress,  but  from  the  laws  of  the  State  under 
which  it  was  organized,  and  that  ^*  it  never  could 
have  been  intended  by  the  Congress  of  the  United 
States,  in  conferring  upon  a  corporation  of  one 
State  the  authority  to  enter  the  territory  of  any 
other  State  and  erect  its  poles  and  lines  therein,  to 
establish  the  proposition  that  such  a  company  owed 
no  obedience  to  the  laws  of  the  State  into  which  it 
thus  entered,  and  was  under  no  obligation  to  pay 
its  fair  proportion  of  the  taxes  necessary  to  its 
support. ' ' 

In  defining  what  is  meant  by  valuation  as  a  unit  valuation 
for  the  purpose  of  taxation,  the  court,  especially  re-  fined-***"* 
f erring  to  express  companies,  in  the  Adams  Express 
Co.  V,  Ohio  State  Auditor  case,^  said:    **  The  unit 
is  a  unit  of  use  and  management,  and  the  horses, 

•  Massachusetts  v.  Western  Union  Tel.  Co.,  (1891)   141  U.  S.  40. 
1  (1888)   125  U.  S.  530. 
i  (1897)    165  U.  S.  194. 


286  REGULATION   OF    COMMERCE 

Ch^ter    wagons,  safes,  pouches,  and  furniture ;  the  contracts 

'__  for  transportation  facilities;  the  capital  necessary 

to  carry  on  the  business,  whether  represented  in 
tangible  or  intangible  property,  in  Ohio,  possessed 
a  value  in  combination  and  from  use  in  connection 
with  the  property  and  capital  elsewhere,  which  could 
as  rightfully  be  recognized  in  the  assessment  for 
taxation  in  the  instance  of  these  companies  as  the 
others.  We  repeat  that  while  the  unity  which  ex- 
ists may  not  be  a  physical  unity,  it  is  something 
more  than  a  mere  unity  of  ownership.  It  is  a  unity 
of  use,  not  simply  for  the  convenience  or  pecuniary 
profit  of  the  owner,  but  existing  in  the  very  necessi- 
ties of  the  case  —  resulting  from  the  very  nature 
of  the  business. ' '  The  same  principle  undoubtedly 
applies  in  the  case  of  telegraph  companies. 
Excep-  There  may  be  exceptional  cases,  as  for  instance, 

tional  cares 

o^f^vaiuaiie  vvherc  thc  terminal  facilities  in  some  large  city  are 
facilities.  Qf  enormous  value,  and  so  give  to  a  mile  or  two 
of  track  in  such  city  a  value  out  of  all  proportion 
to  any  similar  distance  elsewhere  along  the  line 
of  the  road,  or  where  in  certain  localities  the  com- 
pany is  engaged  in  a  particular  kind  of  business 
requiring  for  sole  use  in  such  localities  an  extra 
amount  of  rolling  stock.  If  testimony  to  this  effect 
is  presented  by  a  railroad  company  to  a  State  board, 
it  must  be  assumed,  in  the  absence  of  anything  to 
the  contrary,  that  such  board,  in  making  the  assess- 
ment of  track  and  rolling  stock  within  the  State, 
took  into  account  the  peculiar  and  large  value  of 
such  facilities  and  such  extra  rolling  stock.  But 
whether  in  any  particular  case  such  matters  are 
taken  into  consideration  by  the  assessing  board  does 
not  affect  the  validity  of  the  law,  when  the  law 
does  not  require  that  the  valuation  of  the  prop- 


REGULATION   OF   COMMERCE  287 

erty  within  the  State  shall  be  absolutely  determined    ^^^j®' 
upon  a  mileage  basis.^  _^ 

TAXATION   OF   GROSS  RECEIPTS. 

The  question  of  the  power  of  a  State  to  tax  the  suteswuh- 

^  ^  out  power 

gross  receipts  of  a  corporation  engaged  in  interstate  [l^^^l  \%^ 
commerce  was  first  presented  in  State  Tax  on  Rail-  ^ndlofSgn 
way  Gross  Receipts.^  The  State  of  Pennsylvania  ^°°^'"^''"- 
imposed  a  tax  upon  the  gross  receipts  of  certain 
transportation  companies,  and  in  this  particular 
case  taxed  the  gross  receipts  of  a  railroad  company, 
chartered  by  the  State,  derived  partly  from  the 
freight  of  goods  transported  wholly  within  the 
State,  and  partly  from  the  freight  of  goods  exported 
to  points  without  the  State,  which  latter  were  dis- 
criminated from  the  former  in  the  reports  made  by 
the  company.  The  validity  of  the  tax  was  sustained 
on  the  ground,  among  others,  that  the  tax,  being 
collectible  only  once  in  six  months,  was  laid  upon  a 
fund  which  had  become  the  property  of  the  com- 
pany, mingled  with  its  other  property,  possibly  ex- 
pended in  improvements,  or  otherwise  invested.  In 
Fargo  v.  Michigan  ^  it  was  held  that  a  State  tax  on  course  of 

1  .  rt         rt         .  .IT  •  decisions. 

the  gross  receipts  of  a  foreign  railroad  corporation 
from  interstate  transportation  is  a  burden  on  inter- 
state commerce.  In  this  case  the  court  explained 
the  case  of  State  Tax  on  Railivay  Gross  Receipts, 
supra,  but  distinctly  overruled  it  in  Philadelphia, 
etc.,  Steamship  Co.  v.  Pennsylvania,^  wherein  it  was 
held  that  a  tax  upon  the  gross  receipts  of  a  steam- 

8  Pittsburgh,  etc.,  R.  Co.  v.  Backus,  (1894)   154  U.  S.  421.     See 
also  Cleveland,  etc.,  R.  Co.  v.  Backus,  (1894)  154  U.  S.  439. 
4  (1872)   15  Wall.  (U.  S.)  284. 
«  (1887)   121  U.  S.  230. 
«  (1887)   122  U.  S.  326. 


288  BEGULATION    OF    COMMERCE 

Chapter    ship  company,  incorporated  under  the  laws  of  the 

'__  taxing  State,  derived  from  the  transportation  of 

persons   and  property  by   sea,   between   different 
States,  and  to   and  from  foreign  countries,   is   a 
burden  upon  interstate  and  foreign  commerce. 
?utci^'  Nevertheless,  a  State  may  levy  a  tax  on  the 

ceipts.  receipts  of  an  interstate  corporation,  whether  it  be 
a  domestic  corporation,^  or  one  organized  under  the 
laws  of  another  State,^  when  the  statute  confines  the 
tax  to  the  intrastate  business,  and  in  no  way  relates 
to  the  interstate  business  of  the  company.^  In 
Maine  v.  Grand  Trunk  R.  Co}  it  was  held  that  the 
imposition  of  a  tax  on  a  foreign  railroad  corpora- 
tion, operating  a  railroad  partly  within  and  partly 
without  the  State,  levied  upon  the  receipts  ascer- 
tained by  dividing  the  gross  transportation  receipts 
over  its  whole  extent  by  the  total  number  of  miles 
operated,  to  obtain  the  average  gross  receipts  per 
mile,  and  taking  the  gross  receipts  in  the  State  to 
be  the  average  gross  receipts  per  mile  multiplied  by 
the  number  of  miles  operated  within  the  State,  was 
not  a  regulation  of  interstate  and  foreign  commerce, 
the  court  saying  that  a  resort  to  the  receipts  was 
simply  to  ascertain  the  value  of  the  business  done 
by  the  corporation,  and  thus  obtain  a  guide  to  a 
reasonable  conclusion  as  to  the  amount  of  the  privi- 
lege tax  which  should  be  levied. 

7  Lehigh  Valley  R.  Co.  v.  Pennsylvania,  (1892)  145  U.  S.  192. 
See  also  the  discussion  supra,  p.  151,  as  to  the  separability  of  the 
receipts  on  domestic  from  receipts  on  interstate  transportation. 

«  Pacific  Express  Co.  v.  Seibert,  (1892)   142  U.  S.  339. 

OA  State  may  tax  transportation  within  the  State  when  in  its 
course  it  passes  through  another  State  than  that  of  its  origin  and 
destination,  if  there  is  no  breaking  of  bulk  or  transfer  of  pas- 
sengers in  the  other  State.  Lehigh  Valley  R.  Co.  v.  Pennsylvania, 
(1892)   145  U.  S.  192. 

See  aupra^  p.  156. 

1  (1891)   142  U.  S.  217. 


EEGULATION   OF   COMMERCE  289 


A   single   tax   assessed   upon   receipts   derived    Chapter 

partly  from  interstate  commerce  and  partly  from  '___^ 

commerce  within  the  State,  but  which  have  been  separa- 
returned  and  assessed  in  gross  and  without  separa-  intricate 

.  ,  •  T  -I       ^^om  inter- 

tion  and  apportionment,  is  not  wholly  invalid,  state  tax. 
Such  a  tax  is  invalid  only  in  proportion  to  the  ex- 
tent that  such  receipts  were  derived  from  interstate 
commerce,  and  when  the  means  are  presented 
whereby  the  receipts  arising  from  commerce  wholly 
within  the  State,  and  from  that  which  was  interstate, 
can  be  separated,  the  tax  may  be  levied  on  the 
domestic  receipts.^ 

The  State  of  Maryland  granted  to  the  Baltimore  gf'PjjjJjJjj" 
and  Ohio  Railroad  Company  the  right  to  make  a  lH^^^^^ 
branch  or  lateral  road  from  Baltimore  to  Wash- 
ington, with  a  stipulation  in  the  charter  that  the 
company  should,  at  the  end  of  every  six  months, 
pay  to  the  State  one-fifth  of  the  whole  amount  which 
might  be  received  for  the  transportation  of  pas- 
sengers. In  holding  that  this  was  not  a  violation 
of  the  commerce  clause,  the  court,  in  Baltimore,  etc., 
R.  Co.  V.  Maryland,^  speaking  through  Mr.  Justice 
Bradley,  said:  ^*  So  long,  therefore,  as  it  is  con- 
ceded (as  it  seems  to  us  it  must  be)  that  the  power 
to  charge  for  transportation,  and  the  amount  of 
the  charge,  are  absolutely  within  the  control  of  the 
State,  how  can  it  matter  what  is  done  with  the 
money,  whether  it  goes  to  the  State  or  to  the  stock- 
holders of  a  private  corporation?  As  before  said, 
the  State  could  have  built  the  road  itself  and  charged 

2  Western  Union  Tel.  Co,  v.  Alabama  State  Board  of  Assessment, 
(1889)  132  U.  S.  472;  Ratterman  v.  Western  Union  Tel.  Co.,  (1888) 
127  U.  S.  411. 

3  (1874)  21  Wall.  (U.  S.)  456. 

19 


290  BEGULATION    OF    COMMERCE 

lOTter    any  rate  it  chose,  and  could  thus  have  filled  the 

coffers   of  its   treasury  without  being  questioned 

therefor.  How  does  the  case  differ,  in  a  constitu- 
tional point  of  view,  when  it  authorizes  its  private 
citizens  to  build  the  road  and  reserves  for  its  own 
use  a  portion  of  the  earnings?  We  are  unable  to 
see  any  distinction  between  the  two  cases.  In  our 
judgment  there  is  no  solid  distinction.  If  the  State, 
as  a  consideration  of  the  franchise,  had  stipulated 
that  it  should  have  all  the  passenger  money,  and 
that  the  corporation  should  have  only  the  freight 
for  the  transportation  of  merchandise,  and  the  cor- 
poration had  agreed  to  those  terms,  it  would  have 
been  the  same  thing.  It  is  simply  the  exercise  by 
the  State  of  absolute  control  over  its  own  prop- 
erty and  prerogatives.*'  But  Mr.  Justice  Harlan, 
in  Northern  Securities  Co.  v.  U.  S.,*  referring  to  the 
Baltimore,  etc.,  R.  Co.  v.  Maryland  case,  supra, 
.  said :  ^ '  In  the  case  just  referred  to  the  court  does 
not  say,  and  it  is  not  to  be  supposed  that  it  will  ever 
say,  that  any  power  exists  in  a  State  to  prevent  the 
enforcement  of  a  lawful  enactment  of  Congress,  or 
to  invest  any  of  its  corporations,  in  whatever  busi- 
ness engaged,  with  authority  to  disregard  such  en- 
actment or  defeat  its  legitimate  operation.  On  the 
-contrary,  the  court  has  steadily  held  to  the  doctrine, 
vital  to  the  United  States  as  well  as  to  the  States, 
that  a  State  enactment,  even  if  passed  in  the  exer- 
-cise  of  its  acknowledged  powers,  must  yield,  in  case 
of  conflict,  to  the  supremacy  of  the  Constitution  of 
the  United  States  and  the  Acts  of  Congress  enacted 
in  pursuance  of  its  provisions.'' 

4  (1904)  193  U.  S.  197. 


EEGULATION    OF    COMMERCE  291 


Chapter 
TAXATION    OF   GOODS.  ^"^1. 


Property  actually  in  transit  from  one  State  to  wwie 
another  State  is  exempt  from  local  taxation,  in  transit, 
although  if  it  be  stored  for  an  indefinite  time  during 
such  transit,  at  least  for  other  than  natural  causes, 
or  lack  of  facilities  for  immediate  transportation, 
it  may  be  lawfully  assessed  by  the  local  authorities.^ 
In  Brown  v.  Houston  ^  it  was  held  that  coal  mined  in 
Pennsylvania  and  sent  by  water  to  New  Orleans  to 
be  sold  in  the  open  market  there  on  account  of  the 
owners  in  Pennsylvania,  and  lying  at  New  Orleans 
in  flatboats  for  sale,  became  intermingled,  on  its 
arrival  there,  with  the  general  property  of  the 
State,  and  was  subject  to  taxation  under  the  general 
laws  of  Louisiana,  although  it  might  have  been, 
after  arrival,  sold  from  the  vessel  on  which  the 
transportation  was  made,  without  being  landed,  and 
for  the  purpose  of  being  taken  out  of  the  country  by 
a  vessel  bound  to  a  foreign  port."^ 

The  products  of  a  State,  though  intended  for  ex-  JjJ^^^^ 
portation  to  another  State,  and  partially  prepared 

BKelley  v.  Rhoads,  (1903)  188  U.  S.  1,  holding  that  a  flock  of 
sheep,  driven  without  unnecessary  delay  across  a  State  for  ship- 
ment, and  not  for  the  purpose  of  grazing,  was  exempt  from  taxation 
by  the  State  through  which  it  was  being  transported. 

A  State  may  tax  property  brought  into  the  State  merely  for  the 
purpose  of  undergoing  a  partial  process  of  manufacture.  Standard 
Oil  Co.  V.  Combs,  (1884)   96  Ind.  179. 

A  stamp  tax  on  bills  of  lading  for  the  transportation  to  any 
point  outside  the  State  is  a  tax  on  the  goods,  and,  when  the  goods 
are  being  exported  to  a  foreign  country,  is  a  tax  on  exports  within 
the  prohibition  of  the  clause  of  Article  I,  section  10,  providing  that 
"no  State  shall,  without  the  consent  of  Congress,  lay  any  imposts 
or  duties  on  imports  or  exports."  Almy  v.  California,  (1860)  24 
How.  (U.  S.)   169. 

«  (1885)   114  U.  S.  622. 

t  See  also  Pittsburg,  etc.,  Coal  Co.  v.  Bates,  (1895)  156  U.  S.  577. 


292  KEGULATION   OF   COMMERCE 

Chapter    for  that  purpose  by  being  deposited  at  a  place  or 

port  of  shipment  within  the  State,  are  liable  to  be 

taxed  like  other  property  within  the  State.  The 
rule  in  relation  to  the  products  of  a  State  intended 
for  exportation  to  a  foreign  country  or  to  another 
State,  as  to  the  point  of  time  at  which  the  taxing 
power  of  the  State  over  them  terminates,  is  that 
such  goods  do  not  cease  to  be  part  of  the  general 
mass  of  property  in  the  State,  subject,  as  such,  to 
its  jurisdiction,  and  to  taxation  in  the  usual  way, 
umtil  they  have  been  shipped,  or  entered  with  a 
common  carrier  for  transportation,  or  have  been 
started  upon  such  transportation  in  a  continuous 
route  or  journey.^ 
impj>rts  In  considering  the  power  of  the  States  to  tax 

wunSes.  imported  goods  while  in  the  original  packages  and 
in  the  pos^session  of  the  importer,  it  has  to  be  borne 
in  mind  that  the  clause  of  section  10,  Article  I,  pro- 
viding, in  part,  that  '^  no  State  shall,  without  the 
consent  of  Congress,  lay  any  imposts  or  duties  on 
imports  or  exports,''  creates  a  distinction  in  this 
regard  between  goods  imported  from  foreign  coun- 
tries and  from  other  States.  The  word  *^  imports  '^ 
in  the  clause  quoted  applies  only  to  articles  im- 
ported from  foreign  countries,^  and  is  an  absolute 
prohibition  of  State  taxation  of  goods  imported 
from  foreign  countries  while  they  are  in  the  original 
packages  and  before  they  have,  by  the  act  of  the 

8Coe  V.  Errol,  (1886)  116  U.  S.  517,  holding  that  logs,  which 
had  been  drawn  down  to  the  place  from  which  they  were  to  be 
transported,  there  to  remain  until  it  should  be  convenient  to  send 
them  to  their  destination,  were  taxable  by  the  State. 

See  also  Diamond  Match  Co.  V.  Ontonagon,  (1903)  188  U.  S.  82. 
And  see  also  as  to  duration  of  federal  protection,  supra,  p.  152. 

9  Patapsco  Guano  Co.  v.  North  Carolina  Board  of  Agriculture, 
(1898)  171  U.  S.  345. 


REGULATION   OF    COMMERCE  293 


importer,  become  incorporated  in  the  mass  of  prop-    Ch^er 

erty  of  the  State  and  are  held  for  sale/  but  when  the  '_^ 

importer  sells  the  imported  articles,  or  otherwise 
mixes  them  with  the  general  property  of  the  State 
by  breaking  up  the  packages,  they  become  incor- 
porated with  the  mass  of  property  and  are  subject 
to  State  taxation.^ 

On  the  other  hand,  a  different  rule  obtains  with  poftedfrom 
respect  to  articles  transported  from  one  State  to  °olnother. 
another.  In  such  cases,  there  is  no  positive  pro- 
hibition like  that  against  taxation  of  imports  from 
foreign  countries,  and  the  States  have  the  power, 
after  the  goods  imported  from  other  States  have 
reached  their  destination  and  are  held  for  sale,  to 
tax  them,  without  discrimination,  like  other  prop- 
erty within  the  State.^ 

iMay  V.  New  Orleans,  (1900)  178  U.  S.  496;  Low  v.  Austin, 
(1871)  13  Wall.  (U.  S.)  29.  See  also  infra,  p.  309,  as  to  the 
right  to  impose  a  license  tax  for  the  privilege  of  selling  such  goods. 

2  Waring  v.  Mobile,   (1868)   8  Wall.    (U.  S.)    110. 

When  original  packages  of  imported  goods  have  been  sold,  and 
the  proceeds  have  become  assets  of  the  importer,  in  the  shape  of 
credits  and  bills  receivable,  the  property  must  be  regarded  as  having 
lost  its  distinctive  character  as  an  import  and  having  become  mixed 
with  the  mass  of  the  importer's  property.  People  v.  Wells,  (1905) 
107  N.  Y.  App.  Div.  15,  affirmed  (1896)   184  N.  Y.  275. 

3  American  Steel,  etc.,  Co.  v.  Speed,  (1904)   192  U.  S.  500. 


reight. 


CHAPTER  XVII. 
PRIVILEGE  AND  OCCUPATION  TAXES. 

ON    THE    BUSINESS    OF    ENGAGING    IN    TRANSPORTATION. 

^^^^    T  T  ^^y  b®  stated  as  a  rule  of  general  application, 

'__    1     that  no  State  can  compel  a  party,  individual,  or 

corporation  to  pay  for  the  privilege  of  engaging 

in  interstate  commerce.^ 
Sans1Srt°^        The  business  of  transporting  passengers  ^  and 
ge?s^a^nT"'  freight^  into,  through,  or  out  of  a  State  cannot  be 

subjected  to  taxation  by  the  State. 

1  Atlantic,  etc.,  Tel.  Co.  v.  Philadelphia,  (1903)   190  U.  S.  160. 

In  Crandall  v.  Nevada,  (1867)  6  Wall.  (U.  S.)  35,  it  was  held 
that  a  State  capitation  tax  upon  every  person  leaving  the  State, 
or  passing  through  it,  by  any  common  carrier,  was  not  void  as  a 
regulation  of  commerce,  but,  as  the  operation  of  such  a  statute  would 
embarrass  the  operations  of  the  national  government,  it  was  held 
void. 

A  license  tax  for  the  privilege  of  fishing  in  State  waters  (Mor- 
gan v.  Com.,  (1900)  98  Va.  812),  or  on  the  business  of  canning  or 
packing  oysters  (Applegarth  v.  State,  (1899)  89  Md.  140;  State  V. 
Applegarth,   (1895)   81  Md.  293),  is  valid. 

To  carry  on  the  business  of  collecting  soiled  clothing  and  sending 
it  to  another  State  to  be  laundered  and  returned,  a  license  may  be 
required.  Smith  v.  Jackson,  (1899)  103  Tenn.  673.  But  see  Com. 
V.  Pearl  Laundry  Co.,  (1899)   105  Ky.  259. 

2Pickard  v.  Pullman  Southern  Car  Co.,  (1886)  117  U.  S.  34, 
overruling  Pullman  Southern  Car  Co.  v.  Gaines,  (1877)  3  Tenn.  Ch. 
587;  Tennessee  v.  Pullman  Southern  Car  Co.,  (1886)  117  U.  S.  51, 
afflrming  (1884)  22  Fed.  Rep.  276;  Henderson  v.  New  York,  (1875) 
92  U.  S.  259;  Passenger  Cases,  (1849)  7  How.  (U.  S.)  283.  But 
Bee  New  York  v.  Miln,  (1837)   11  Pet.  (U.  S.)    102. 

8  The  invalidity  of  a  State  tax  on  interstate  and  foreign  com- 
merce is  not  cured  by  including,  in  the  provisions  of  the  statute 


REGULATION   OF   COMMERCE  295 

This  does  not,  however,  prevent  a  State  from    Chapte* 
levying  a  franchise  tax  upon  a  railroad  company  


for  the  privilege  of  maintaining  a  separate,  inde-  Franchise 
pendent  local  service,  preliminary  or  subsequent  to  riteTcSf^ 
any  interstate  transportation.  This  is  illustrated  %^^^'- 
by  the  case  of  New  York  v.  Knights  The  Pennsyl- 
vania Railroad  Company  had  established  a  cab 
stand  on  its  own  premises  at  the  Twenty-third  street 
ferry  in  the  city  of  New  York,  and  maintained  a 
service  of  cabs  and  coaches  under  special  licenses 
from  the  city  of  New  York,  whereby  they  could 
stand  on  those  premises  only.  The  sole  business 
done  by  those  cabs  and  coaches  was  to  bring  the 
company's  passengers  to  and  from  its  ferry  from 
Twenty-third  street  to  Jersey  City.  The  charges 
for  this  service  were  separate  from  those  of  the 
company  for  further  transportation,  and  no  part  of 
its  receipts  from  the  cab  service  was  received  as 
compensation  for  any  service  outside  the  State  of 
New  York.  It  was  held  that  the  State  tax  on  the 
cab  service  was  valid  though  it  had  not  been  profit- 
able to  the  company,  but  had  been  operated  at  a  loss. 

While  the  privilege  of  carrying  on  an  interstate  onprivi- 
transportation  business  cannot  be  taxed,  a  State  jngaiocafv 
statute  laying  a  tax  upon  a  transportation  com- 
pany, which  in  terms  applies  strictly  to  business 
done  in  the  transportation  of  passengers  taken  up 
at  one  point  in  the  State  and  transported  wholly 
within  the  State  to  another  point  therein,  is  not  an 
interference  with  interstate  commerce.  In  Allen  v. 
Pullman's  Palace  Car  Co.^  it  was  argued  that  the 

imposing  it,  the  same  or  a  like  tax  on  domestic  commerce.  State 
Freight  Tax  Case,  (1872)  15  Wall.  (U.  S.)  232,  reversing  Tonnage- 
Tax  Cases,  (1869)  62  Pa.  St.  286. 

4  (1904)    192  U.  S.  21. 

6  (1903)   191  U.  S.  171. 


business^ 


296  REGULATION   OP   COMMERCE 

Ch^ter    tax  Collected  for  carrying  one  or  more  local  pas- 

^ sengers  on  cars  operating  within  the   State  was 

assessed  upon  traffic  which  bore  such  small  propor- 
tion to  the  entire  business  of  the  company  within 
the  State,  that  it  could  not  have  been  levied  in  good 
faith  upon  purely  local  business,  and  was  but  a 
thinly  disguised  attempt  to  tax  the  privilege  of  inter- 
state traffic.  Upon  a  similar  contention  in  Pullman 
Co.  V.  AdamSy^  the  court  said  that  as,  under  the  law 
of  the  State,  the  company  had  the  right  to  choose 
between  what  points  it  would  carry,  and  therefore 
to  give  up  the  carriage  of  passengers  from  one  point 
to  another  within  the  State,  it  could  not  complain  of 
being  taxed  for  the  privilege  of  doing  a  local  busi- 
ness which  it  was  free  to  renounced  The  same 
principle  has  been  applied  in  the  case  of  express 
companies.  So  long  as  the  taxation  of  the  business 
of  an  express  company  does  not  apply  to  or  affect 
in  any  manner  the  business  which  is  interstate  in 
character,  but  applies  to  and  affects  only  the  busi- 
ness which  is  done  within  the  State,  it  is  valid.^ 
ucensing  A  State  and  its  municipalities  cannot  exact  a 

license  from  an  owner  of  vessels  duly  enrolled  and 
licensed  under  the  laws  of  the  United  States  and 
employed  in  the  coasting  trade,  for  the  privilege 

6  (1903)  189  U.  S.  420. 

7  "  If  the  payment  of  this  tax  was  compulsory  upon  the  company 
before  it  could  do  a  carrying  business  within  the  State,  and  the 
burden  of  its  payment,  because  of  the  minor  character  of  the  domes- 
tic traffic,  rested  mainly  upon  the  receipts  from  interstate  traffic, 
tiiere  would  be  much  force  in  this  objection."  Allen  v.  Pullman's 
Palace  Car  Co.,  (1903)  191  U.  S.  171. 

«  Osborne  v.  Florida,  (1897)  164  U.  S.  654. 

In  Osborne  v.  Mobile,  (1872)  16^  Wall.  (U.  S.)  479,  it  was  held 
that  a  municipal  ordinance  was  not  invalid  in  requiring  payment  of 
a  license  for  the  privilege  of  transacting  in  that  city  a  business  ex- 
tending beyond  the  limits  of  the  State.  But  the  case  was  overruled 
in  Leloup  v.  Mobile,  (1888)   127  U.  S.  640. 


«wners. 


KEGULATION   OF    COMMERCE  297 


of  navigating  a  navigable  stream  within  the  State    ^^^^^^ 
unless  the  license  is  a  charge  by  way  of  compensa-  '_ 


tion  for  a  specific  improvement.^  The  question  of  Keepers 
the  power  of  a  State  or  mmiicipal  corporation  to 
levy  a  license  upon  the  keepers  of  ferries  was  dis- 
cussed in  St.  Clair  County  v.  Interstate  Sand,  etc., 
Transfer  Co.^  wherein  it  was  held  that  a  municipal 
corporation  could  not  require  a  license  from  a  ferry 
company  for  transporting  railroad  cars  across  a 
river  between  two  States.  Among  other  cases,  the 
court  referred  to  Gloucester  Ferry  Co.  v.  Pennsyl- 
vania,^ and  Wiggins  Ferry  Co.  v.  East  St.  Louis.^ 
In  the  first  of  those  cases  it  was  held  that  a  ferry 
company,  incorporated  and  domiciled  in  New  Jersey, 
carrying  on  a  ferry  business  over  the  Delaware 
river  between  Camden,  New  Jersey,  and  Philadel- 
phia, and  owning  a  wharf  or  slip  at  which  its  boats 
landed,  could  not  be  taxed  for  the  privilege  of  re- 
ceiving and  landing  passengers  and  freight  at  its 
wharf  in  Philadelphia.  In  the  second  case,  the 
ferry  company  was  in  the  enjoyment  of  a  ferry 
franchise  to  operate  across  the  Mississippi  river 
between  Illinois  and  Missouri.  The  company  was 
domiciled  in  Illinois,  that  State  being  the  situs  of  its 
boats  and  other  property,  and  it  was  held  that  the 
exaction  of  a  license  tax  by  a  municipal  corporation 
in  Illinois  for  the  privilege  of  ferrying  across  the 
river  between  the  two  States  was  not  repugnant  to 

sHarman  v.  Chicago,  (1893)  147  U.  S.  396,  reversing  (1892)  140 
III.  374;  Moran  v.  New  Orleans,  (1884)   112  U.  S.  69. 

A  State  tax  on  immigrants  arriving  from  foreign  ports  is  a 
regulation  of  commerce  with  foreign  nations.  People  v.  Compagnie 
G6n6rale  Transatlantique,  (1882)   107  U.  S.  59. 

1  (1904)    192  U.  S.  454. 

2  (1885)   114  U.  S.  196. 
»   (1882)  107  U.  S.  365. 


298 


REGULATION   OF   COMMERCE 


Chapter 


For  privi- 
lege of 
keeping  an 
office. 


On  an 
agency  es- 
tablished 
to  facilitate 
interstate 
business. 


License  tax 
on  railroad 
agency  — 
Soliciting 
interstate 
traffic. 


the  commerce  clause.  It  will  be  noticed  that  the 
St.  Clair  County  case,  supra,  limits  the  application 
of  the  Wiggins  Ferry  case,  supra,  and  that  this  case 
seems  to  have  been  decided  upon  the  idea  that  the 
tax  was  in  the  nature  of  a  tax  on  property  having 
a  situs  within  the  State.* 

A  license  tax  cannot  be  imposed  upon  a  foreign 
corporation  for  the  privilege  of  keeping  an  office  in 
the  State  used  to  facilitate  the  transaction  of  its 
interstate  commerce,^  but,  within  the  principle  recog- 
nized and  heretofore  stated,  that  the  privilege  of 
carrying  on  the  domestic  part  as  distinguished  from 
interstate  business  may  be  taxed,  it  has  been  held 
that  a  State  may  impose  a  tax  for  the  privilege  of 
keeping  an  office  in  the  State  when  there  is  trans- 
acted at  that  office  intrastate  as  well  as  interstate 
business.^ 

A  statute  or  municipal  ordinance  requiring  a 
transportation  agency  to  pay  a  license  tax  as  a  con- 
dition to  doing  any  business  in  the  State  is  invalid 
as  to  an  agency  of  a  foreign  corporation  doing  an 
interstate  business.'^  In  McCall  v.  California,^  it 
was  held  that  a  railroad  agency  could  not  be  re- 
quired to  pay  a  municipal  license  tax  on  the  busi- 
ness of  soliciting  interstate  traffic.  In  the  particular 
case,  the  person  was  an  agent  in  the  city  of  San 

*  See  also  as  to  duties  of  tonnage,  supra,  p.  274. 

6  Norfolk,  etc.,  R.  Co.  v.  Pennsylvania,  (1890)   136  U.  S.  114. 

A  license  tax  may  be  imposed  upon  a  foreign  corporation  for  the 
privilege  of  keeping  an  office  in  the  State  when  such  corporation  is 
not  engaged  in  interstate  commerce.  Pembina  Consol.  Silver  Min., 
etc.,  Co.  V.  Pennsylvania,  (1888)   125  U.  S.  181. 

«  Atty.-Gen.  v.  Electric  Storage  Battery  Co.,  (1905)  188  Mass.  239. 

7  See  Crutcher  v.  Kentucky,  (1891)  141  U.  S.  47,  as  to  agents 
of  express  companies,  and  Clyde  Steamship  Company  v.  Charleston, 
(1896)  76  Fed.  Rep.  46,  as  to  steamship  agencies. 

8  (1890)   136  U.  S.  104. 


REGULATION   OF    COMMERCE  299 

Francisco,  California,  for  a  railroad  company  oper-    Chapter 

a  ting  a  continuous  line  of  road  between  Chicago 

and  New  York,  and  the  only  duty  he  was  required 
to  perform  was  to  induce  people  contemplating 
taking  a  trip  East  to  be  booked  over  the  line  he 
represented.  The  court,  Mr.  Justice  Lamar  de- 
livering the  opinion,  said:  *'  The  object  and  effect 
of  his  soliciting  agency  were  to  swell  the  volume 
of  the  business  of  the  road.  It  was  one  of  the 
*  means  '  by  which  the  company  sought  to  increase 
and  doubtless  did  increase  its  interstate  passenger 
traffic.  It  was  not  incidentally  or  remotely  con- 
nected with  the  business  of  the  road,  but  was  a 
direct  method  of  increasing  that  business.  The  tax 
upon  it,  therefore,  was,  according  to  the  principles 
established  by  the  decisions  of  this  court,  a  tax  upon 
a  means  or  an  occupation  of  carrying  on  interstate 
commerce,  pure  and  simple.'*  The  principle  that 
when  a  tax  is  laid  not  in  terms  upon  the  domestic 
business,  but  is  a  gross  sum  imposed,  regardless  of 
the  fact  that  the  greater  portion  of  the  business 
may  be  interstate  in  character,  the  construction  of 
the  State  court  will  be  accepted  as  in  reality  a  part  construc- 
of   the   statute   itself,   was   applied   in   KeJirer   v.  ute  by  state 

^  ^^  court  — 

Stewart,^  as  to  a  municipal  tax  on  the  distributing  f^^to'"^ 
agent  of  a  packing  house  shipping  dressed  meats  bSi! 
into  the  State,  when  the  record  did  not  show  what 
proportion  of  such  business  was  interstsfte  and 
what  proportion  was  domestic.  The  tax  was  held  to 
be  valid,  and  Mr.  Justice  Brown,  delivering  the 
opinion  of  the  court,  said:  *^  If  the  amount  of 
domestic  business  were  purely  nominal,  as,  for  in- 
stance, if  the  consignee  of  a  shipment  made  in 
Chicago,  upon  an  order  filled  there,   refused  the 

9  (1905)   197  U.  S.  60. 


300 


REGULATION    OF   COMMERCE 


Chapter 
XVII. 


goods  shipped,  and  the  only  way  of  disposing  of 
them  was  by  sales  at  Atlanta,  this  might  be  held  to 
be  strictly  incidental  to  an  interstate  business,  and 
in  reality  a  part  of  it,  as  we  held  in  Crutcher  v. 
KentucJcy,  (1891)  141  U.  S.  47;  but  if  the  agent 
carried  on  a  definite,  though  a  minor,  part  of  his 
business  in  the  State  by  the  sales  of  meat  there,  he 
would  not  escape  the  payment  of  the  tax,  since  the 
greater  or  less  magnitude  of  the  business  cuts  no 
figure  in  the  imposition  of  the  tax.  There  r>nnld  be 
no  doubt  whatever  that,  if  the  agent  carried  on  his 
interstate  and  domestic  business  in  two  distinct 
establishments,  one  would  be  subject  and  the  other 
would  not  be  subject  to  the  tax,  and  in  our  view  it 
makes  no  difference  that  the  two  branches  of  busi- 
ness are  carried  on  in  the  same  establishment.  The 
burden  of  proof  was  clearly  upon  the  plaintiff  to 
show  that  the  domestic  business  was  a  mere  incident 
to  the  interstate  business." 


As  a  con- 
dition to 
doin^  busi- 
ness in  the 
State. 


On  domes- 
tic business. 


ON    TELEGRAPH    AND    TELEPHONE    COMPANIES. 

A  State  cannot  exact  a  license  tax  from  a  tele- 
graph company,  doing  an  interstate  as  well  as  a 
domestic  or  internal  business,  as  a  condition  to  doing 
business  within  the  State,^  but  such  a  tax  upon  a 
telegraph  company  on  business  done  exclusively 
withjn  the  State,  and  not  including  any  interstate  or 
government  business,  is  an  exercise  of  the  police 
power,  and  not  an  interference  with  interstate  com- 
merce.2  When  a  State  imposes  an  occupation  tax 
in  the  way  of  a  tax  on  messages  generally,  so  far 

iLeloup  V.  Mobile,  (1888)  127  U.  S.  640,  reversing  (1884)  76 
Ala.  401. 

2  Postal  Tel.  Cable  Co.  v.  Charleston,  (1894)  153  U.  S.  692, 
afflnning   (1893)   56  Fed.  Rep.  419. 


REGULATION   OF   COMMERCE  301 

as  it  operates  on  private  messages  sent  ont  of  the    9^^P*®^ 

State,  it  is  beyond  the  power  of  the   State,   and 

whether  such  a  law  can  be  used  to  enforce  the  col- 
lection of  the  tax  on  messages  sent  by  private  parties 
from  one  place  to  another  exclusively  within  its  own 
jurisdiction,  is  a  question  entirely  within  the  juris- 
diction of  the  courts  of  the  State.^ 

The  advantages  or  privileges  that  are  conferred  Effect  of 

privileges 

upon  telegraph  companies  by  Acts  of  Congress  are  j°"^Yt^^^ 
in  the  line  of  authority  to  construct  and  maintain  congress. 
lines  as  means  or  instruments  of  commerce,  and  are 
not  necessarily  inconsistent  with  a  right  on  the  part 
of  the  States  in  which  business  is  done  and  property 
acquired  to  tax  the  same  within  the  limitations  of 
constitutional  restrictions,  as  in  the  case  of  imposing 
a  license  tax  on  business  done  exclusively  within  the 
State.* 

Municipal  taxation  of  the  poles  and  wire  belong-  on  poies 

.  1  .  .  rt  ^nd  wire 

mg  to  a  telegraph  company  using  the  streets  oi  a  -f^;;*^J^_ 
city  is  not  a  regulation  of  commerce  if  it  is  reason-  ^'^^^^^ 
able.  Under  the  Acts  of  Congress  respecting  the 
use  of  the  post  roads  of  the  United  States  the  occu- 
pation of  the  streets  by  a  telegraph  company  cannot 
be  denied  by  the  municipal  corporation,  but  a  sum 
may  be  charged  on  each  pole  erected  as  compensa- 
tion in  the  nature  of  rental  for  the  use  of  the  street.^ 
And  so  a  license  fee  of  a  certain  amount  per  pole 
and  per  mile  of  wire  may  be  imposed  to  cover  the 
cost  of  local  governmental  supervision.^      As  has 

3  Western  Union  Tel.  Co.  v.  Texas,   (1881)   105  U.  S.  460. 

*  Postal  Tel.  Cable  Co.  v.  Charleston,  (1894)   153  U.  S.  692. 

8  St.  Louis  V.  Western  Union  Tel.  Co.,   (1893)   148  U.  S.  92. 

« Atlantic,  etc.,  Tel.  Co.  v.  Philadelphia,  (1903)  190  U.  S.  160; 
Western  Union  Tel.  Co.  v.  New  Hope,  (1903)   187  U.  S.  419. 

Though  the  telegraph  company  has  no  office  in  the  borough,  a 
municipal  corporation  may  impose  such  a  license  fee  for  each  pole 


302 


REGULATION    OF    COMMERCE 


Chapter 
XVII. 


Reason- 
ableness 
varies  in 
aifferent 
munici' 
palities. 


been  said,  the  charges  in  such  cases  must  be  reason- 
able,^ but  an  ordinance  imposing  a  fee  for  super- 
vision must  be  taken  as  prima  facie  reasonable.^ 

The  question  of  reasonableness  is  one  of  fact 
and  cannot  be  the  same  in  one  city  as  in  another. 
What  is  reasonable  in  one  municipality  may  be  op- 
pressive and  unreasonable  in  another.^  In  Postal 
Tel.-Cahle  Co.  v.  Taylor  ^  it  was  held  that  the  ordi- 
nance in  question  imposed  an  unreasonable  license 
fee.  It  appeared  from  the  affidavit  of  defense  that 
the  license  fees  imposed  by  the  ordinance  were  not 
based  upon  the  cost  and  expense  to  the  borough  for 
inspection  and  supervision  or  regulation  of  the  de- 
fendant's lines  and  business,  but  the  fees  were  im- 
posed notwithstanding  they  were  more  than  twenty 
times  the  amount  that  might  have  been  or  could 


and  mile  of  wire  within  its  limits.    Taylor  v.  Postal  Tel.  Cable  Co., 
(1902)  202  Pa.  St.  584. 

7  A  municipal  ordinance  charging  the  sum  of  five  dollars  per 
annum  as  rental  for  each  and  every  telegraph  or  telephone  pole 
erected  or  used  in  the  streets  in  the  city,  cannot  be  assumed  to  be 
80  excessive  as  to  be  unreasonable  and  void.  St.  Louis  v.  Western 
Union  Tel.  Co.,  (1893)  148  U.  S.  92,  rehearing  denied  St.  Louis  v. 
Western  Union  Tel.  Co.,  (1893)  149  U.  S.  465.  See  also  Postal  Tel. 
Cable  Co.  v.  Baltimore,  (1895)  156  U.  S.  210,  as  to  two  dollars  per 
pole  rental  fee. 

A  municipal  charge  of  one  dollar  per  annum  for  each  pole  and  of 
two  dollars  and  fifty  cents  per  mile  of  wires  suspended  above  ground 
was  held  to  be  unreasonable  in  Philadelphia  v.  Western  Union 
Tel.  Co.,  (1897)  82  Fed.  Rep.  797. 

8  Western  Union  Tel.  Co.  v.  New  Hope,  (1903)  187  U.  S.  419. 

9  Atlantic,  etc.,  Tel.  Co.  v.  Philadelphia,  (1903)  190  U.  S.  160. 
See  Postal  Tel.  Cable  Co.  v.  New  Hope,  (1904)  192  U.  S.  55, 
wherein,  the  jury  having  found  a  verdict  for  a  sum  less  than  the 
amount  of  the  tax  claimed,  it  was  held  that  the  court  should  have 
entered  judgment  for  the  defendant  declaring  the  ordinance  un- 
reasonable and  void.  Upon  finding  the  ordinance  unreasonable,  it 
was  not  the  province  of  the  jury  to  assess  a  tax  and  render  verdict 
for  the  amount  it  might  judge  reasonable. 

1  (1904)  192  U.  S.  64. 


BEGULATION    OF    COMMERCE  303 

possibly  be  incidental   to   such   inspection,   super-    PJ^P*^' 

vision,  and  regulation,  together  with  all  reasonable 

measures  and  precautions  that  might  have  been  or 
possibly  could  be  required  to  be  taken  by  the 
borough  for  the  safety  of  its  citizens  and  the  public, 
or  which  might  have  been  or  possibly  could  be  in- 
curred as  expenses  for  the  most  careful,  thorough, 
and  efficient  inspection  and  supervision  that  might 
have  been  made  of  the  poles  and  wires  of  the  com- 
pany, and  that  the  borough  had  not  discharged  or 
attempted  to  discharge  its  duty  of  inspecting  the 
poles  and  wires  for  the  purpose  of  seeing  that  they 
were  safe.  The  court,  its  opinion  being  delivered 
by  Mr.  Justice  Peckham,  said:  **  We  assume  that 
a  tax  of  this  kind  ought  to  be  large  enough  to 
cover  all  expenses  of  police  supervision  of  the  prop- 
erty and  instrumentalities  used  by  the  company  in 
the  borough,  and  that  it  is  not  bound  to  furnish  such 
supervision  for  nothing,  but  may,  in  addition  to 
ordinary  property  taxation,  subject  the  corpora- 
tion to  a  charge  for  the  expenses  of  the  supervision. 
The  borough  is  also  not  compelled  to  make  its  ex- 
penditures for  these  purposes  in  advance  of  demand- 
ing the  tax  from  the  defendant,  but  it  must  be 
remembered  that  such  a  tax  is  authorized  only  in 
support  of  police  supervision,  and  if  it  were  possible 
to  prove  in  advance  the  exact  cost,  that  sum  would 
be  the  limit  of  the  law.  As  in  the  nature  of  things 
this  is  ordinarily  impossible,  the  municipality  is  at 
liberty  to  make  the  charge  enough  to  cover  any 
reasonably  anticipated  expenses,  and  the  payment 
of  the  fee  cannot  be  avoided  because  it  may  subse- 
quently appear  that  it  was  somewhat  in  excess  of 
the  actual  expense  of  the  supervision,  nor  can  the 
company  then  recover  the  difference  between  the 
amount  of  the  license  fee  and  such  cost.  ^ ' 


304  EEGULATION    OF    COMMERCE 

Chapter 
XVII.  ON    DBUMMERS   AND    CANVASSERS. 

Sales  by  Rohhins  V.  Shelby  County  Taxing  Dist.^  has  gen- 

foodl^to  be  erally  been  looked  upon  as  the  leading  case  on  the 
fnt?^the  question  of  the  power  of  the  States  to  impose  license 
taxes  on  persons  engaged  in  the  sale  of  goods  which 
are  to  be  shipped  into  the  State  on  order.  In  that 
case  it  was  held  that  a  statute  requiring  all  persons 
not  having  a  regular  licensed  house  of  business  in 
a  particular  taxing  district,  and  selling  goods  therein 
by  sample,  to  pay  a  license,  was  a  burden  on  inter- 
state commerce  as  applied  to  persons  selling  goods 
that  were  in  another  State.^  Such  a  tax  cannot  be 
imposed  whether  the  individual  taxed  be  a  resident 
or  a  nonresident  of  the  State.^ 
Mode  of  In  the  case  of  a  sale  by  a  canvasser,  the  fact  that 

delivery. 

the  article  is  not  shipped  directly  to  the  purchaser, 
but  is  sent  to  another  agent  of  the  vendor  residing 
in  the  State,  who  delivers  it  to  the  purchaser,  and 
the  further  fact  that  separate  parts  of  the  article 
sold  are  in  separate  packages  when  received  by  the 
agent  for  delivery,  do  not  deprive  the  transaction 
of  its  interstate  character.^ 
SlJchIn  ^^^  right  to  impose  a  license  tax,  however,  on  a 

brokers.      fi^^  established  and  doing  business  as  general  mer- 

2  (1887)   120  U.  S.  489. 

3  See  also  Asher  v.  Texas,  (1888)  128  U.  S.  129;  Corson  v.  Mary- 
land, (1887)  120  U.  S.  502;  Walling  v.  Michigan,  (1886)  116  U.  S. 
446;  and  see  Stoutenburgh  v.  Hennick,  (1889)  129  U.  S.  141,  as  to  an 
act  of  the  legislative  assembly  of  the  District  of  Columbia. 

♦  Stockard  v.  Morgan,  (1902)   185  U.  S.  27. 

6  Caldwell  v.  North  Carolina,  (1903)  187  U.  S.  622. 

A  person  who  takes  orders  from  samples  for  goods  which  he 
engages  to  deliver,  and  which  are  to  be  shipped  into  the  State  from 
another  State,  is  not  engaged  in  interstate  commerce  when  such 
orders  are  not  transmitted  to  such  other  State,  or  filled  there,  but 
are  filled  from  goods  not  in  the  original  packages  of  importation 
but  from  goods  sent  to  him  in  bulk,  C.  O.  D.,  from  such  other  State. 
In  re  Pringle,  (1903)  67  Kan.  364. 


REGULATION   OF   COMMERCE  305 

chandise  brokers  was  affirmed  in  Ficklen  v.  Shelby    ^^^FJT^ 

County  Taxing  Dist.^     It  was  a  material  fact  in  that  ^ 

case  that  the  persons  had  taken  out  a  general  and 
unrestricted  license  to  do  business  as  brokers,  and 
were  thereby  authorized  to  do  any  and  all  kinds  of 
commission  business,  and  therefore  became  liable 
to  pay  the  privilege  tax  exacted.  Although  their 
principals  happened  in  a  particular  year  to  be  wholly 
nonresidents,  the  fact  might  have  been  otherwise, 
because  their  business  was  not  confined  to  transac- 
tions for  nonresidents.  But  Chief  Justice  Fuller 
said :  *  *  What  position  they  would  have  occupied 
if  they  had  not  undertaken  to  do  a  general  commis- 
sion business,  and  had  taken  out  no  licenses  therefor, 
but  had  simply  transacted  business  for  nonresident 
principals,  is  an  entirely  different  question,  which 
does  not  arise  upon  this  record. "  "^ 

ON  MERCHANTS,  PEDDLERS,  AND  AUCTIONEERS. 

While  a  license  tax  cannot  be  imposed  on  the  i^^^pj^J^-h. 
business  of  soliciting  orders  for  goods  to  be  trans-  jlfefdy"^* 
ported   from  another   State,   such   a   tax  may  be  IuST^^ 
exacted   from    persons    already   in    the    State,    as 
merchants,  peddlers,  or  auctioneers,  when  the  deal- 
ings are  neither  accompanied  nor  followed  by  any 
transfer  of  goods,  or  of  any  order  for  their  transfer, 
from  one  State  to  another,  but  the  tax  is  one  upon 
the   privilege    of   selling   goods   that   are   already 
within  the  State,  though  they  have  been  brought  in 

e  (1892)   145  U.  S.  1. 

»  Requiring  commission  merchants  to  procure  a  license  and  give 
bond  for  the  benefit  of  persons  intrusting  them  with  consignments, 
is  not  a  regulation  of  commerce.  State  t\  Edwards,  (1905)  94  Minn. 
225;  State  v.  Wagener,  (1899)   77  Minn.  483. 


306  REGULATION   OF   COMMERCE 

Ch^ter    from  other  States.^     So  long  as  the  tax  is  uniform 
on   all   sales   by  vendors   of  the   particular   class, 


whether  citizens  of  the  State  or  of  some  other  State, 
and  whether  the  goods  sold  are  the  produce  of  that 
State  or  another  State,  it  cannot  be  considered  as 
an  attempt  to  fetter  commerce  among  the  States.^ 
iDifference  It  thus  bccomcs  ncccssary  to  observe  particu- 


coods'^with-  l^^ly  the  difference  between  the  right  of  a  State  or 
«the^state  ^  muuicipal  corporation  to  impose  privilege  taxes 
Sthfn"the    upon  drummers  and  canvassers  on  the  one  hand,  and 

State. 

upon  merchants,  peddlers,  and  auctioneers  on  the 
other.  In  the  case  of  the  first  class  of  dealers,  a 
privilege  tax,  though  it  may  be  general  and  uniform 
upon  all  of  the  same  class,  cannot  be  required  of 
such  members  of  the  class  as  are  engaged  in  solicit- 
ing orders  for  goods  which  are  to  be  shipped  upon 
the  order  from  another  State  or  from  a  foreign 
country.  But  in  the  case  of  the  second  class,  a  State 
may  impose  a  privilege  tax  when  its  levy  is  general 
and  uniform,  because  the  goods  are  within  the  State 
at  the  time  of  sale.  The  distinction  may  be  illus- 
trated by  a  comparison  of  Rohhins  v.  Shelby  County 
Taxing  Dist.,^  and  Howe  Mack.  Co.  v.  Gage? 

In  the  former  of  these  cases,  it  will  be  remem- 
bered, a  statute  requiring  a  license  tax  to  be  paid 
by  a  drummer  soliciting  trade  in  goods  to  be  shipped 
from  another  State  was  held  to  be  a  burden  upon 
Cases  par-    iutcrstatc  commcrcc.    But  in  the  Howe  Mach.  Co.  v. 

«icalarly 

Gage  case,  the  facts  agreed,  as  shown  by  the  record, 
were  as  follows:     The  Howe  Machine  Company, 

«Emert  v.  Missouri,    (1895)    156  U.  S.  296,  afflrming  Stat*  V. 
Emert,  (1890)   103  Mo.  241. 

•  Woodruff  V.  Parham,  (1868)  8  Wall.  (U.  S.)  123. 
1  (1887)   120  U.  S.  489. 
a  (1879)   100  U.  S.  676. 


wmfUccd 

trating 
:distinc- 


BEGULATION   OF    COMMEBCB  307 

a  corporation  of  Connecticut,  manufacturing  sewing    Chapter 

machines  at  Bridgeport  in  that  State,  and  having  '_^ 

an  office  at  Nashville  in  the  State  of  Tennessee, 
sent  into  Sumner  county,  for  the  purpose  of  sell- 
ing or  peddling  machines,  an  agent  who  traveled 
through  the  country,  in  a  wagon  with  one  horse,  for 
the  purpose  of  exhibiting  and  offering  for  sale  the 
company's  machines.  The  machines  offered  for 
sale  and  sold  by  him  were  manufactured  in  Con- 
necticut, and  brought  into  Tennessee  for  sale;  and 
he  paid,  under  protest,  a  tax  required  of  him 
under  the  statutes  of  Tennessee  for  the  privilege  or 
license  to  peddle  or  sell  the  machines  of  the  com- 
pany in  Sumner  county.  By  those  statutes,  **  all 
articles  manufactured  of  the  produce  of  the  State  '  * 
were  exempt  from  taxation;  and  ^*  all  peddlers  of 
sewing  machines  "  were  required  to  pay  a  tax  of 
fifteen  dollars.  The  Supreme  Court  of  Tennessee 
having  held  that  the  latter  provision  *  ^  levied  the  tax 
upon  all  peddlers  of  sewing  machines,  without  re- 
gard to  the  place  of  growth  or  produce  of  material 
or  of  manufacture, ' '  the  United  States  Supreme 
court,  speaking  by  Mr.  Justice  Swayne,  considered 
itself  ^^  bound  to  regard  this  construction  as  cor- 
rect, and  to  give  it  the  same  effect  as  if  it  were  a 
part  of  the  statute;  "  and  decided  that  ^^  the  stat- 
ute in  question,  as  construed  by  the  Supreme  Court 
of  the  State,  makes  no  such  discrimination.  It  ap- 
plies alike  to  sewing  machines  manufactured  in  the 
State,  and  out  of  it.  The  exaction  is  not  an  unusual 
or  unreasonable  one.  The  State,  putting  all  such 
machines  upon  the  same  footing  with  respect  to  the 
tax  complained  of,  had  an  unquestionable  right  to 
impose  the  burden.''  The  distinctive  fact  in  this 
case  was  that  the  agent  would  either  sell  the  ma- 


order. 


308  REGULATION   OF    COMMERCE 

^apter    chine  he  was  exhibiting  or  would  send  an  order  to 
'     be  filled  from  stock  in  the  possession  of  the  State 
agency  at  Nashville.    The  machine  being  within  the 
j  State  at  the  time  of  the  sale  or  contract  of  sale,  the 
transaction  was  not  one  of  interstate  commerce.^ 
Goods^  In  Norfolk,  etc.,  R.  Co.  v.  Sims,'*'  these  were  the 

in°oTher  f acts :  A  rcsidcnt  of  North  Carolina  ordered  from 
cp^D.  a  corporation  in  Chicago  a  sewing  machine.  The 
machine  was  shipped  under  a  bill  of  lading  to  the 
order  of  the  buyer,  but  this  bill  of  lading  was  sent 
to  the  express  agent  at  the  point  of  delivery  in 
North  Carolina,  with  instructions  to  surrender  the 
bill  on  payment  of  a  C.  O.  D.  charge.  The  conten- 
tion was  that  the  consummation  of  the  transaction 
by  the  express  agent  in  transferring  the  bill  of  lad- 
ing upon  payment  of  the  C.  O.  D.  charge  was  a  sale 
of  the  machine  in  North  Carolina,  which  subjected 
the  company  to  a  license  tax.  The  contention  was 
held  untenable.  Calling  attention  to  the  fact  that 
the  contract  of  sale  was  completed  as  a  contract  in 
Chicago,  and  reviewing  some  of  the  authorities  on 
the  subject  of  interstate  commerce,  Mr.  Justice 
Brown,  who  delivered  the  opinion  of  the  court, 
said :  * '  Indeed,  the  cases  upon  this  subject  are 
almost  too  numerous  for  citation,  and  the  one  under 
consideration  is  clearly  controlled  by  them.  The 
sewing  machine  was  made  and  sold  in  another  State, 
shipped  to  North  Carolina  in  its  original  package 
for  delivery  to  the  consignee  upon  payment  of  its 
price.    It  had  never  become  commingled  with  the 

»  An  ordinance  requiring  merchants  to  pay  a  license  was  held  to 
be  valid  as  applied  to  the  case  of  sales  ot  goods  shipped  in  bulk  to 
the  shipper  as  consignee,  on  orders  previously  given  to  an  agent,  and 
sorted  out  to  customers  to  whom  the  separate  orders  .were  not  given 
until  paid  for.    Canton  v.  McDaniel,  (1905)  188  Mo.  207. 

*(1903)   191  U.  8.  441. 


REGULATION    OF    COMMERCE  309 

general  mass  of  property  within  the  State.    While    ^i^t^^' 

technically  the  title  of  the  machine  may  not  have  '_ 

passed  until  the  price  was  paid,  the  sale  was  actually 
made  in  Chicago,  and  the  fact  that  the  price  was 
to  be  collected  in  North  Carolina  is  too  slender  a 
thread  upon  which  to  hang  an  exception  of  the 
transaction  from  a  rule  which  would  otherwise  de- 
clare the  tax  to  be  an  interference  with  interstate 
commerce." 

The  difference   between   goods   imported  from  Difference 
foreign  countries  and  those  brought  into  a  State  ^^^^^^ 
from  other  States,  which  has  been  heretofore  re-  ffgold?** 
f erred  to,^  and  which  results  from  the  absolute  pro-  f/om^ilher 
hibition  of  State  taxation  of  goods  imported  from 
foreign  countries  while  they  are  in  the  original 
packages  and  before  they  have,  by  the  act  of  the 
importer,  become  incorporated  in  the  mass  of  prop- 
erty of  the  State,  is  important  also  in  this  connec- 
tion.   While  a  State  may  tax  the  privilege  of  selling 
goods  which  are  within  the  State  and  which  have 
been  brought  in  from  other  States,  a  tax  cannot  be 
imposed  upon  an  importer,^  or  upon  an  auctioneer,"^ 
for  the  privilege  of  selling  goods  which  have  been 
imported  from  foreign  countries  and  while  they  are 
in  the  original  packages. 

ON  FOREIGN  CORPORATIONS. 

As  has  been  shown,  in  a  previous  part  of  this  Forprivi- 

lege  of  do- 
work,   a   State  may  exclude  foreign   corporations  j^Jg^^f^i^j^ 

from,  or  impose  conditions  upon  their  doing  busi-  'he  state. 
ness  within,  the  State,  unless  such  corporation  is 

5  See  supra,  p.  292 


5  bee  supra,  p.  292. 

6  Brown  v.  Maryland,  (1827)   12  Wheat.  (U.  S.)  419. 
^  Cook  V.  Pennsylvania,  (1878)  97  U.  S.  566. 


310  REGULATION   OF    COMMERCE 

Obapter    engaged  in  interstate  commerce  or  is  in  the  em- 

'_  ploy  of  the  federal  government.^     Consequently  a 

State  may  require  of  a  foreign  corporation,  not  en- 
gaged in  interstate  commerce  and  not  acting  as  an 
agency  of  the  federal  government,  the  payment 
of  a  tax  for  the  privilege  of  carrying  on  business 
within  the  State.^ 

SUNDRY  OCCUPATIONS  AS  SUBJECT   TO   TAXATION. 

Exchange  A  brokcr,  dealing  in  foreign  bills  of  exchange, 

is  not  engaged  in  commerce,  but  in  supplying  an 
instrumentality.  Such  a  bill  of  exchange  is  not  an 
import  or  export  within  the  meaning  of  the  clause 
of  Article  I,  section  10,  providing  that  *^  no  State 
shall,  without  the  consent  of  Congress,  lay  any  im- 
posts or  duties  on  imports  or  exports.*'  Conse- 
quently it  has  been  held  that  a  State  tax  on  all 
money  and  exchange  brokers  was  not  void  as  to  one 
dealing  in  foreign  bills  of  exchange;  Mr.  Justice 
McLean  saying:  ^*  This  is  not  a  tax  on  bills  of 
exchange.  Under  the  law,  every  person  is  free  to 
buy  or  sell  bills  of  exchange,  as  may  be  necessary 
in  his  business  transactions;  but  he  is  required  to 
pay  the  tax  if  he  engage  in  the  business  of  a  money 
or  an  exchange  broker. ' '  ^ 
Owners  of  A  statutc  requiring  a  license  from  the  owners 
vators.  of  grain  elevators  and  warehouses  situated  on  the 
right  of  way  of  a  railroad  is  not  inconsistent  with 
the  power  of  Congress  to  regulate  commerce.^ 

8  Sec  supra,  p.  248. 

•  New  York  v.  Roberts,  (1898)  171  U.  S.  658;  Horn  Silver  Min. 
Co.  V.  New  York,  (1892)   143  U.  S.  305. 

1  Nathan  v.  Louisiana,  (1850)  8  How.  (U.  S.)  73.  See  also 
E»  p.  Martin,  (1871)  7  Nev.  140,  that  a  statute  requiring  a  stamp 
to  be  afRxed  on  foreign  bills  of  exchange  is  valid. 

2W.  W.  Cargill  Ck).  v.  Minnesota,  (1901)  180  U.  S.  462,  whereia 


BEGULATION   OF   COMMERCE 


311 


In  Williams  v.  Fears,^  it  was  held  that  the  levy 
of  a  tax  by  the  State  of  Georgia  on  the  occupation 
of  a  person  engaged  in  hiring  laborers  to  be  em- 
ployed beyond  the  limits  of  the  State,  was  not  a 


Chaptexr 


Hiring  Ik- 
borers  to  h 
employed 
outside  Iki 

regulation   of   interstate   commerce,   and   that   the  ^^^^ 
tax  fell  within  the  distinction  between  interstate 
commerce  or  an  instrumentality  thereof,  and  the 
mere  incidents  that  might  attend  the  carrying  on  of 
such  commerce. 

And  consistently  with  the  idea  that  insurance  is  iM»»aKr^ 

*'  agents  aai 

not  commerce,  it  has  been  held  that  a  statute  mak-  ^^okera. 
ing  it  an  offense  to  assume  to  act  as  an  insurance 
agent  or  broker  without  license,  or  to  act  in  any 
mr.nnor  in  the  negotiation  or  transaction  of  insur- 
ance with  a  foreign  insurance  company  not  ad- 
mitted to  do  business  in  the  State,  is  not  in  conflict 
with  the  commerce  clause  of  the  Constitution.* 


the  court  said:     "The  license  has  reference  only  to  the  business  of 
the  defendant  at  its  elevator  and  warehouse.     The  statute  only  re- 
quires a  license  in  respect  of  business  conducted  at  an  established 
warehouse  in  the  State  between  the  defendant  and  the  sellers  of/ 
grain." 

3  (1900)    179  U.  S.  270. 

«  Nutting  V.  Massachusetts,  (1902)  183  U.  S.  553. 


CHAPTER  XVm. 

TAXATION    OF    CORPORATE    FRANCHISES. 

^5n^    nPHE  existence  of  federal  supervision  over  inter- 

1       state  commerce,  and  the  consequent  obliga- 

of  domes-  tion  upon  the  federal  courts  to  protect  that 

tic  corpora-  ^  ^ 

tioa*^  right  of  control  from  encroachment  on  the  part  of 
the  States,  are  not  inconsistent  with  the  power  of 
each  State  to  control  its  own  internal  commerce, 
and  to  tax  the  franchises  of  its  own  corporations 
engaged  in  interstate  commerce,  if  the  tax  is  limited 
to  the  value  of  the  franchise  as  property  and  to  the 
value  of  the  property  of  the  corporation  situated  in 
the  State  or  habitually  used  therein.^ 

iNew  York  v.  Miller,  (1906)  202  U.  S.  584;  Philadelphia,  etc.. 
Steamship  Ck).  v.  Pennsylvania,  ( 1887 )  122  U.  S.  326. 

"  The  exercise  of  the  authority  which  every  State  possesses  to  tax 
its  corporations  and  all  their  property,  real  and  personal,  and  their 
franchises,  and  to  graduate  the  tax  upon  the  corporations  accord- 
ing to  their  business  or  income,  or  the  value  of  their  property, 
when  this  is  not  done  by  discriminating  against  rights  held  in 
other  States,  and  the  tax  is  not  on  imports,  exports,  or  tonnage,  or 
transportation  to  other  States,  cannot  be  regarded  as  conflicting  with 
any  constitutional  power  of  Congress."  Per  Mr.  Justice  Field,  in 
Delaware  Railroad  Tax,  (1873)   18  Wall.   (U.  S.)  206. 

The  franchises  granted  to  a  bridge  company  may  be  included  in 
the  valuation  of  the  company's  property  for  taxation.  Henderson 
Bridge  Co.  v.  Kentucky,  (1897)  166  U.  S.  150,  wherein  Chief  Justice 
Fuller  said :  "  Clearly  the  tax  was  not  a  tax  on  the  interstate 
business  carried  on  over  or  by  means  of  the  bridge,  because  the 
bridge  company  did  not  transact  such  business.  That  business  was 
carried  on  by  the  persons  and  corporations  which  paid  the  bridge 
company  tolls  for  the  privilege  of  using  the  bridge.  The  fact  that 
the  tax  in  question  was  to  some  extent  affected  by  the  amount  of  the 
tolls  received,  and  therefore  might  be  supposed  to  increase  the  rate 


BEGULATION   OF    COMMEBCE  313 

That  a  foreign  corporation  engaged  in  inter-  ^Pfj^ 

state  commerce  cannot  be  excluded  from  a  State  nor  '_ 

be  required  to  comply  with  stipulated  terms  as  a  of  foreign 

condition  to  the  right  to  transact  interstate  business  tions- 

^  ^  ^  .        When  esti- 

therein,  has  been  shown  in  a  previous  part  of  this  "ropery  * 
work.-      The  franchise  of  such  a  corporation  may  ^^* 
be  taxed,  nevertheless,  when  it  is  estimated  upon 
the  valuation  of  its  property  within  the  State,^  or 
upon  a  proportion  of  its  gross  receipts.^ 

Though  dealing  in  imported  goods  is  part  of  Pf^^yj^^,^^ 
the  business  of  a  domestic  or  foreign  corporation,  e°o<is. 
a  franchise  tax  on  the  business  done  within  the 
State  does  not  violate  the  clause  of  Article  I,  sec- 
tion 10,  of  the  Constitution  providing  that  *'  no 
State  shall,  without  the  consent  of  Congress,  lay 
any  imposts  or  duties  on  imports  or  exports."* 

of  tolls,  is   too  remote  and  incidental  to  make  it  a  tax  on  the 
business  transacted." 

A  tax  on  the  capital  stock  is  a  tax  on  franchises  conferred  by 
the  State,  and  as  such  not  open  to  objection.  Keokuk,  etc.,  Bridge 
Co.  V.  Illinois,  (1900)  175  U.  S.  626. 

2  See  supra,  p.  249. 

A  State,  in  permitting  a  foreign  corporation  to  become  one  of  the 
constituent  elements  of  a  consolidated  corporation  organized  under 
it3  laws,  may  impose  such  conditions  as  it  deems  proper,  and  the 
charge  of  a  fee,  based  on  the  percentage  of  the  entire  capital  stock, 
does  not  constitute  a  tax  upon  interstate  commerce,  or  the  right  to 
carry  ort  the  same,  or  the  instruments  thereof.  Ashley  V.  Ryan, 
(1894)    153  U.  S.  436. 

3  Western  Union  Tel.  Co.  v.  Missouri,  (1903)   190  U.  S.  412. 

"  The  right  and  privilege,  or  the  franchise  as  it  may  be  termed, 
of  being  a  corporation,  is  of  great  value  to  its  members,  and  is  con- 
sidered as  property  separate  and  distinct  from  the  property  which 
the  corporation  itself  may  acquire.  According  to  the  law  of  most 
States  this  franchise  or  privilege  of  being  a  corporation  is  deemed 
personal  property,  and  is  subject  to  separate  taxation.  The  right 
of  the  States  to  thus  tax  it  has  been  recognized  by  this  court  and 
the  State  courts  in  instances  without  number,"  Per  Mr.  Justice 
Field,  in  Horn  Silver  Min.  Co.  v.  New  York,  (1892)   143  U.  S.  305. 

4  Maine  v.  Grand  Trunk  R.  Co.,  (1891)   142  U.  S.  217. 
B  People  V.  Roberts,  (1899)  158  N.  Y.  162. 


314 


REGULATION    OF    COMMERCE 


Chapter 
XVIII. 


Payment  as 
a  condition 
to  doing 
business  in 
the  SUte. 


When 
holding  a 
federal 
franchise 


That  the  exaction  of  taxation  in  this  form  may 
not  result  in  being  a  burden  upon  interstate  com- 
merce, it  should  not  be  susceptible  of  exceeding  the 
amount  which  might  be  levied  directly,  as  in  the 
nature  of  a  tax  on  the  property  of  the  corporation 
within  the  State,  nor  should  the  payment  of  the  tax 
be  made  a  condition  precedent  to  the  right  of  a 
foreign  corporation  to  carry  on  such  business,  but 
its  enforcement  should  be  left  to  the  ordinary  means 
devised  for  the  collection  of  taxes.^ 

As  to  a  corporation  holding  a  franchise  under 
an  Act  of  Congress,  a  State  may  tax  the  property 
within  its  limits  belonging  to  the  corporation  unless 
Congress  has  expressly  declared  it  to  be  exempt^ 
but  the  State  cannot  tax  the  franchise  without  per- 
mission of  Congress^  But  the  grant  of  a  fran- 
chise by  Congress  to  a  corporation  created  by  a 
State,  merely  renders  the  State  right  subordinate 
to  the  federal  right,  and  does  not  destroy  the  State 
right  to  tax  the  State  franchise  nor  merge  it  into 
the  federal  right,  when  such  result  is  not  expressed 
or  implied  in  any  declaration  by  Congress.^ 


•  Postal  Tel.  Cable  Co.  v.  Adams,  (1895)  155  U.  S.  688. 

T  California  v.  Central  Pac.  R.  Co.,  (1888)  127  U.  S.  1;  Union  Pac- 
R.  Co.  V.  Peniston,  (1873)  18  Wall.  (U.  S.)  5;  Thomson  v.  Union  Pac. 
R.  Co.,  (1869)  9  Wall.  (U.  S.)  579. 

8  Central  Pac.  R.  Co.  v.  California,  (1896)  162  U.  S.  91. 


CHAPTEE  XIX. 

DISCRIMINATION    BY    TAXATION. 

DISCRIMINATING    AGAINST    PRODUCTS    OF    OTHER    STATES 
GENERALLY. 


I 


N  the  second  part  of  this  work,  in  the  chapter  on  ^^chapter 
Discriminative  State  Statutes,  we  have  pointed      ^^'^• 
out  the  invalidity  of  provisions  of  State  statutes 
discriminating  against  the  products  or  the  citizens 
of  other  States.    The  most  frequent  mode  in  which 
the   States  have  discriminated  has  been  through 
the  medium  of  taxation.    An  occupation  cannot  be 
taxed  if  the  tax  is  so  specialized  as  to  operate  as  a 
discriminative  burden  against  the  introduction  and 
sale  of  the  products  of  other  States  or  against  the 
citizens  of  other  States.^     But,  upon  the  principle  suggestion 
that  the  courts  will  not  declare  a  statute  invalid  afifeaed  by 
upon  the  suggestion  of  one  who  is  not  shown  to  be  validity, 
affected  by  its  alleged  invalidity,  it  was   said  in 
Downham  v.  Alexandria,^  that  a  municipal  ordi- 
nance imposing  a  license  tax  *'  on  all  agents  or 
dealers  in  beer  or  ale  by  the  cask,  not  manufactured 
in  this  city  but  brought  here  for  sale, ' '  could  not  be 
held  to  be  obnoxious  to  the  commerce  clause  when 
it  was  not  alleged  that  the  persons  accused  of  its 
violation  were  dealers  in  **  foreign  beer  or  ale,''  or 
even  in  beer  or  ale  manufactured  without  the  State. 

1  Walling  V.  Michigan,  (1886)   116  U.  S.  446. 
a  (1869)   10  Wall.  (U.  S.)  173. 


in- 


316  REGULATION   OF   COMMERCE 

Chapter         We  said  above  that  a  tax  cannot  be  so  specialized 

'__  as  to  operate  as  a  discriminative  burden  against 

Privileges    the  citizcns  of  other  States.    The  immunity  of  non- 
munities  of  rcsidcuts  from  discriminative  burdens,  though  those 

citizens.  '  70 

burdens  may  be  imposed  in  the  way  of  restrictions 
upon  their  commercial  intercourse  with  the  citizens 
of  the  State,  is  probably  more  directly  protected  by 
other  provisions  of  the  Constitution  than  by  the 
commerce  clause.  A  statute  of  Maryland,  requiring 
all  traders  residing  within  the  State  to  take  out 
licenses  at  certain  rates,  and  subjecting  to  indict- 
ment and  penalty  nonresidents  of  the  State  who, 
without  taking  out  a  license  at  a  higher  rate,  should 
sell  or  offer  for  sale,  by  card,  sample,  or  trade  list, 
within  the  limits  of  the  city  of  Baltimore,  any  goods, 
wares,  or  merchandise  whatever,  other  than  agri- 
cultural products  and  articles  manufactured  in  the 
State,  was  held  to  be  unconstitutional,  because  it 
'  imposed  a  discriminating  tax  upon  the  residents  of 
other  States.  While  the  court  discussed  the  effect 
of  the  statute  on  commerce,  the  case  seems  rather 
to  have  involved  the  application  of  the  clause  of 
Article  IV,  section  2,  of  the  Constitution,  declaring 
that  **  the  citizens  of  each  State  shall  be  entitled 
to  all  privileges  and  immunities  of  citizens  in  the 
several  States."^ 
Exempting         A  leading  case  on  the  subject  of  discrimination 

sales  of  ar-      ,  ^  " 

ducedT'  ^^  ^"^^  ^^  Welton  V.  Missouri.'^  The  plaintiff  in 
the  sute.  error  was  indicted,  tried,  and  convicted  in  the  State 
court  for  dealing  in  sewing  machines  which  were 
manufactured  outside  the  State  of  Missouri,  and 
going  from  place  to  place  in  the  State  of  Missouri 
selling  sewing  machines  without  a  license  for  that 

»Ward  V.  Maryland,  (1870)  12  Wall.  (U.  S.)  418. 
4  (1875)  91  U.  S.  275. 


REGULATION   OF    COMMERCE  317 


purpose,  under  a  statute  which  said  that  '^  who-    Chapter 

ever  shall  deal  in  the  selling  of  patent  or  other  '__^ 

medicines,  goods,  wares,  or  merchandise,  except 
books,  charts,  maps,  and  stationery,  which  are  not 
the  growth,  produce,  or  manufacture  of  this  State, 
by  going  from  place  to  place  to  sell  the  same,  is 
declared  to  be  a  peddler."  In  holding  that  the 
statute  encroached  upon  the  power  which  protects 
a  commodity,  even  after  it  has  entered  the  State, 
from  any  burdens  imposed  by  reason  of  its  foreign 
origin,  the  court,  through  Mr.  Justice  Field,  said: 
*'  That  portion  of  commerce  with  foreign  countries 
and  between  the  States  which  consists  in  the  trans- 
portation and  exchange  of  commodities  is  of  na- 
tional importance,  and  admits  and  requires  uni- 
formity of  regulation.  The  very  object  of  investing 
this  power  in  the  general  government  was  to  insure 
this  uniformity  against  discriminating  State  legis- 
lation." 

The  case  of  Webber  v.  Virginia  ^  involved  the  Exempting 

^  agents  sell- 

validity  of  a  statute  of  Virginia  providing:  ''  Any  jjf^jgjf.'*^ 
person  who  shall  sell,  or  offer  for  sale,  the  manu-  {h^stlte. 
factured  articles  or  machines  of  other  States  or 
Territories,  unless  he  be  the  owner  thereof  and 
taxed  as  a  merchant,  or  take  orders  therefor,  on 
commission  or  otherwise,  shall  be  deemed  to  be  an 
agent  for  the  sale  of  manufactured  articles  of  other 
States  and  Territories,  and  shall  not  act  as  such 
without  taking  out  a  license  therefor.  No  such  per- 
son shall,  under  his  license  as  such,  sell  or  offer  to 
sell  such  articles  through  the  agency  of  another; 
but  a  separate  license  shall  be  required  from  any 
agent  or  employee  who  may  sell  or  offer  to  sell  such 
articles  for  another.    For  any  violation  of  this  sec- 

8  (1880)  103  U.  S.  344. 


318  REGULATION   OP    COMMEBCB 

Chapter    tion,  the  person  offending  shall  pay  a  fine  of  not 

less  than  fifty  dollars  nor  more  than  one  hundred 

dollars  for  each  offense.  The  specific  license  tax 
upon  an  agent  for  the  sale  of  any  manufactured  arti- 
cle or  machine  of  other  States  or  Territories  shall 
be  twenty-five  dollars;  and  this  tax  shall  give  to 
any  party  licensed  under  this  section  the  right  to 
sell  the  same  within  the  county  or  corporation  in 
which  he  shall  take  out  his  license;  and  if  he  shall 
sell  or  offer  to  sell  the  same  in  any  other  of  the 
counties  or  corporations  of  this  State,  he  shall  pay 
an  additional  tax  of  ten  dollars  in  each  of  the 
counties  or  corporations  where  he  may  sell  or 
offer  to  sell  the  same.  All  persons  other  than 
resident  manufacturers  or  their  agents,  selling 
articles  manufactured  in  this  State,  shall  pay  the 
specific  license  tax  imposed  by  this  section.*'  In 
that  case,  wherein  the  plaintiff  in  error  had  been 
indicted  for  unlawfully  selling  and  offering  for  sale 
sewing  machines  which  had  been  manufactured  out 
of  the  State,  without  having  first  obtained  a  license 
for  that  purpose,  Mr.  Justice  Field,  in  describing  the 
effect  and  determining  the  validity  of  the  statute, 
said:  ^*  By  these  sections,  read  together,  we  have 
this  result:  the  agent  for  the  sale  of  articles  manu- 
factured in  other  States  must  first  obtain  a  license 
to  sell,  for  which  he  is  required  to  pay  a  specific 
tax  for  each  county  in  which  he  sells  or  offers  to 
sell  them;  while  the  agent  for  the  sale  of  articles 
manufactured  in  the  State,  if  acting  for  the  manu- 
facturer, is  not  required  to  obtain  a  license  or  pay 
any  license  tax.  Here  there  is  a  clear  discrimina- 
tion in  favor  of  home  manufacturers  and  against 
the  manufacturers  of  other  States.  Sales  by  manu- 
facturers are  chiefly  effected  through  agents.    A  tax 


REGULATION    OF    COMMERCE  319 

upon  their  agents  when  thus  engaged  is,  therefore,    ^^^,pJ®^ 

a  tax  upon  them,  and  if  this  is  made  to  depend 

upon  the  foreign  character  of  the  articles,  that  is, 
upon  their  having  been  manufactured  without  the 
State,  it  is  to  that  extent  a  regulation  of  commerce  in 
the  articles  between  the  States.  It  matters  not 
whether  the  tax  be  laid  directly  upon  the  articles 
sold  or  in  the  form  of  licenses  for  their  sale.  If  by- 
reason  of  their  foreign  character  the  State  can  im- 
pose a  tax  upon  them  or  upon  the  person  through 
whom  the  sales  are  effected,  the  amount  of  the  tax 
will  be  a  matter  resting  in  her  discretion.  She  may 
place  the  tax  at  so  high  a  figure  as  to  exclude  the 
introduction  of  the  foreign  article  and  prevent  com- 
petition with  the  home  product.  It  was  against  leg- 
islation of  this  discriminating  kind  that  the  f  ramers 
of  the  Constitution  intended  to  guard  when  they 
vested  in  Congress  the  power  to  regulate  commerce 
among  the  several  States."  ^ 

A  tax  on  the  sale  of  liquors  coming  from  out-  Method  of 

^  "  taxation 

side  the  State  is  invalid  notwithstanding  there  is  a  f^Xle  to 
tax  on  dealers  in  liquors  of  domestic  origin,  when,  pj^ua! 
by  reason  of  the  method  of  taxing  the  dealer  in 
domestic  liquors  on  the  one  hand,  and  of  taxing  all 
and  each  of  the  drummers  and  agents  of  the  foreign 
manufacturer  or  dealer  on  the  other  hand,  an  im- 
mense advantage  is  given  to  the  domestic  product 
and  to  the  domestic  manufacturers  and  dealers.'' 
A  Texas  statute  imposing  an  annual  tax  on  the 
occupation  of  selling  spirituous,  vinous,  malt,  or 

« A  statute  which  permits  the  sale  by  peddlers  of  agricultural 
products  of  the  United  States  without  a  license,  while  it  forbids  un- 
licensed sales  of  agricultural  products  of  other  countries,  makes  an 
unlawful  discrimination  in  favor  of  articles  produced  in  the  United 
States.     Com.  v.  Caldwell,  (Mass.  1906)   76  N.  E.  Rep.  955. 

T  Walling  V.  Michigan,  (1886)  116  U.  S.  446. 


320  REGULATION   OF   COMMERCE 

Chapter    other   intoxicating   liquors,    and   providing   '^  that 

this  section  shall  not  be  so  construed  as  to  include 

Exempting  any  wines  or  beer  manufactured  in  this  State, ' '  was 
beer  manu-  hcld,  iu  Tiemafi  V.  Rinker,^  to  be  inoperative  so 
the  State,  far  as  it  made  a  discrimination  against  wines  and 
beer  imported  from  other  States  when  sold  sepa- 
rately from  other  liquors.  It  is  to  be  observed  that 
the  statute  made  no  discrimination  in  favor  of  other 
liquors  of  home  manufacture  than  beer  or  wines. 
Whilst  it  grouped  the  sale  of  several  kinds  of 
liquors  as  one  occupation,  it  evidently  intended  that 
the  occupation  which  consisted  in  the  sale  of  any 
one  of  the  several  liquors  named  should  be  subject 
to  taxation,  as  though  it  read,  '^  for  selling  spirit- 
uous, or  vinous,  or  malt,  or  other  intoxicating 
liquors;  "  and,  as  said  by  Mr.  Justice  Field, ^'  this 
being  the  true  construction  of  the  act,  there  can 
be  no  objection  to  its  enforcement  where  the 
tax  is  levied  [on]  occupations  for  the  sale  of  other 
liquors  than  wines  and  beers.  In  the  present  case 
the  petitioners  describe  themselves  as  engaged  in 
the  occupation  of  selling  spirituous,  vinous,  malt, 
and  other  intoxicating  liquors;  that  is,  in  all  the 
liquors  mentioned  and  others  not  mentioned.  There 
is  no  reason  why  they  should  be  exempted  from  the 
tax  when  selling  brandies  and  whiskies  and  other 
alcoholic  drinks,  in  the  quantities  mentioned,  be- 
cause they  could  not  be  thus  taxed  if  their  occupa- 
tion was  limited  to  the  sale  of  wines  and  beer. '  * 

A  statute  of  the  State  of  Ohio,  known  as  the 
*'  Dow  Law,'*  provided  **  that  upon  the  business 
of  trafficking  in  spirituous,  vinous,  malt  or  any  in- 
toxicating liquors  there  shall  be  assessed  yearly, 
and  shall  be  paid  into  the  county  treasury,  as  herein- 

«  (1880)  102  U.  S.  123. 


BEGULATION   OF   COMMERCE  321 

after  provided,  by  every  person,  corporation,   or    ^^1^ 

copartnership  engaged  therein,  and  for  each  place  ]__ 

where  such  business  is  carried  on  by  or  for  such 
person,  corporation,  or  copartnership,  the  sum  of 
three  hundred  and  fifty  dollars;  ''  and  in  defining 
the  phrase  *^  trafficking  in  intoxicating  liquors," 
declared  that  it  did  ^^  not  include  the  manufacture  Exempting 

sales  at 

of  intoxicating  liquors  from  the  raw  material,  and  ^m^l^, 
the  sale  thereof,  at  the  manufactory,  by  the  manu-  '"'''• 
facturer  of  the  same  in  quantities  of  one  gallon  or 
more  at  any  time.''  In  holding  that  such  an  ex- 
emption did  not  operate  as  an  illegal  discrimina- 
tion against  the  foreign  competitor  who  must  neces- 
sarily sell  at  places  other  than  the  place  of  manu- 
facture, because  the  exemption  was  not  confined  to 
Ohio  corporations  or  copartnerships,  but  extended 
as  well  to  foreign  corporations  whose  places  of 
manufacturing  were  within  the  State  of  Ohio,  and 
so  likewise  the  tax  was  imposed  on  Ohio  corpora- 
tions which  manufactured  goods  in  other  States 
and  established  places  for  their  sale  within  the 
State  of  Ohio,  or  which,  manufacturing  within  the 
State,  established  places  within  the  State  distinct 
from  the  manufactory,  where  their  liquors  were 
sold  and  delivered,  the  court,  in  Beymann  Brewing 
Co.  V.  Brister^  through  Mr.  Justice  Shiras,  said: 
**  Under  this  provision,  the  manufacturers,  whether 
within  or  without  the  State,  may  sell  at  the  manu- 
factory and  ship  to  any  part  of  the  State  of  Ohio, 
and  the  incidental  disadvantage  that  the  foreign 
manufacturer  is  under  that  if,  instead  of  selling 
at  the  place  of  his  plant,  he  wishes  to  establish  a 
place  within  the  State  of  Ohio,  he  is  obliged  to  pay 
the  tax,  does  not  appear  to  arise  out  of  any  inten- 

»  (1900)  179  U.  S.  445. 
21 


322 


REGULATION   OF   COMMERCE 


Chai 
X 


Ei^3r 


X>iscrimi- 
«iation 
against 
«oods 
imported 
from  f or- 
'  f  n  coun- 


tion  on  the  part  of  the  State  legislature  to  make 
a  hostile  discrimination  against  foreign  manufac- 
turers. If  an  Ohio  corporation  or  copartnership 
should  establish  its  place  of  manufacture  in  another 
State  it  would  be  subjected  to  the  tax  if  it  sold 
intoxicating  liquor  at  a  place  within  the  State  of 
Ohio;  and  if  a  foreign  corporation  should  manu- 
facture at  a  place  within  Ohio,  it  would  sell  its 
product,  in  quantities  not  less  than  one  gallon,  with- 
out being  subjected  to  the  tax.  ...  In  exempting 
sales  in  quantities  exceeding  one  gallon  at  the  place 
of  manufacture,  and  in  imposing  the  tax  upon  such 
sales  when  made  at  places  elsewhere,  the  legislature 
of  Ohio  was,  in  the  exercise  of  its  police  power, 
aiming  to  restrict  the  evils  of  saloons,  or  places 
where  liquors  are  drunk.  By  imposing  the  tax  upon 
the  latter,  the  law,  to  some  extent,  is  calculated  to 
lessen  an  acknowledged  source  of  vice  and  dis- 
order. ' ' 

To  goods  imported  from  foreign  countries  the 
principle  applies.  The  State  of  Pennsylvania  im- 
posed a  license  on  sales  by  auction  in  such  a  manner 
that  by  one  statute  a  discrimination  of  one-fourth 
of  one  per  cent,  was  made  against  foreign  goods, 
and,  by  a  later  modifying  statute,  while  all  sales 
of  foreign  or  imported  goods  were  taxed,  those  aris- 
ing from  groceries,  goods,  wares,  and  merchandise 
of  American  growth  or  manufacture  were  exempt 
from  such  tax.  But  in  Cook  v.  Pennsylvania  ^  Mr. 
Justice  Miller  said,  respecting  the  statutes:  **  The 
Congress  of  the  United  States  is  granted  the  power 
to  regulate  commerce  with  foreign  nations  in  pre- 
cisely the  same  language  as  it  is  that  among  the 
States.     If  a  tax  assessed  by  a  State  injuriously 


1  (1878)  97  U.  S.  666. 


KEGULATION   OF    COMMERCE  323 

discriminating  against  the  products  of  a  State  of    ChM)ter 

the  Union  is  forbidden  by  the  Constitution,  a  similar 

tax  against  goods  imported  from  a  foreign  state  is 
equally  forbidden. ' ' 

DIFFERENT   MODES  OF   COLLECTING   TAX. 

Prescribing  different  modes  of  collectins:  a  tax   Notadis- 

T         •      •  •  rr^^         r^  n    criminatkni. 

IS  not,  however,  a  discrimination.  The  State  of 
Alabama  imposed  a  tax  of  fifty  cents  per  gallon  on 
all  whiskey  and  brandy  from  fruits  manufactured 
in  the  State,  the  statute  further  enacting :  ^  *  Before 
it  shall  be  lawful  for  any  dealer  or  dealers  in 
spirituous  liquors  to  offer  any  such  liquors  for  sale 
within  the  limits  of  this  State,  such  dealer  or  dealers 
introducing  any  such  liquors  into  the  State  for  sale 
shall  first  pay  the  tax-collector  of  the  county  into 
which  such  liquors  are  introduced,  a  tax  of  fifty 
cents  per  gallon  upon  each  and  every  gallon 
thereof.''  Collecting  the  tax  on  liquors  manufac- 
tured in  the  State  from  the  distiller,  and  that  on 
liquors  brought  in  from  other  States  from  those  who 
sold  them,  it  was  held,  *^  institutes  no  legislation 
which  discriminates  against  the  products  of  sister 
States,  but  merely  subjects  them  to  the  same  rate 
of  taxation  which  similar  articles  pay  that  are  manu- 
factured within  the  State, ' '  and  is  *  *  an  appropriate 

and  legitimate  exercise  of  the  taxing  power  of  the 
States.  "2 

ABSENCE  OF  DISCRIMINATION. 

But  the  absence  of  discrimination  does  not  render 
taxation  in  some  forms  valid.     We  have  had  occa- 

2  Per  Mr.  Justice  Miller,  in  Hinson  v.  Lott,  (1868)  8  Wall.  (U. 
S.)  148.  And  see  Pabst  Brewing  Co.  v.  Crenshaw,  (1905)  198  U.  S. 
17,  affirming  (1903)   120  Fed.  Rep.  144. 


324 


REGULATION   OF    COMMERCE 


Chapter 
XtX. 


Privilege 
taxes  on 
drummers 
and  can- 
vassers. 


Goods  im- 
ported from 
foreign 
countries. 


sion  heretofore  to  point  out  the  distinction  between 
privilege  taxes  upon  merchants,  peddlers,  and 
auctioneers,  on  the  one  hand,  and  upon  drummers 
and  canvassers  on  the  other,  based  upon  the  prin- 
ciple that  a  privilege  tax  cannot  be  required  of  such 
members  of  the  latter  class  as  are  engaged  in 
soliciting  orders  for  goods  which  are  to  be  shipped 
upon  the  order  from  another  State  or  from  a  foreign 
country.  In  Bobbins  v.  Shelby  County  Taxing 
Dist}  it  was  strongly  urged,  as  if  it  were  a  material 
point  in  the  case,  that  no  discrimination  was  made 
by  the  statute  under  consideration  between  drum- 
mers soliciting  domestic  and  those  soliciting  inter- 
state trade,  but  Mr.  Justice  Bradley,  in  the  course 
of  the  opinion  written  for  the  court  by  him,  said: 
**  Interstate  commerce  cannot  be  taxed  at  all,  even 
though  the  same  amount  of  tax  should  be  laid  on 
domestic  commerce,  or  that  which  is  carried  on 
solely  within  the  State.''  * 

A  further  illustration  will  be  found  by  referring 
to  what  has  already  been  said  regarding  the  power 
of  a  State  to  tax  as  property  goods  in  original  pack- 
ages while  in  the  hands  of  the  importer.  While  this 
power  may  be.  exercised  with  respect  to  such  goods 
as  have  been  imported  from  other  States,  the  posi- 
tive prohibition  contained  in  the  clause  of  Article 
I,  section  10,  that  ^*  no  State  shall,  without  the  con- 
sent of  Congress,  lay  any  imposts  or  duties  on 
imports  or  exports, ' '  forbids  the  levy  and  collection 
of  even  a  general  property  tax  on  goods  imported 
from  foreign  countries,  so  long  as  they  are  in  the 
original  packages  and  in  the  hands  of  the  importer. 


8  (1887)  120  U.  S.  489. 

4  See  also  Brennan  v.  Tituaville,  (1894)  153  U.  S.  289. 


TABLE  OF  CASES  CITED 


A.  PAQB 

Adams  Express  Co.  v.  Com.,  (Ky.  1905)  87  S.  W.  Rep.  1111.. .  131 

Adams  Express  Co.  v.  Iowa,  196  U.  S.  147 145 

Adams  JbiXpress  Co.  v.  Kentucky,  166   U.  S.   171 284 

Adams  Express  Co.  v.  Ohio  State  Auditor,  165  U.  S.  194.. 284,  285 

Adams  Express  Co.  v.  Ohio  State  Auditor,  166  U.  S.  185 284 

Adams  Express  Co.  v.  State,  161  Ind.  328 184 

Addyston  Pipe,  etc.,  Co.  v.  U.  S.,  175  U.  S.  211 20,  40,  50, 

75,  113,  114,  115,  116,  118 

Ah  Cue,  Ex  p.,  101  Cal.  197 243 

Ah  Fong,  In  re,  3  Sawy.  (U.  S.)   144,  1  Fed.  Cas.  No.  102 243 

Alameda,  The,  31  Fed.  Rep.  366 210 

Aldrich  v.  JEtnsi  Ins.  Co.,  8  Wall.  (U.  S.)  491 218 

Allen  V.  Labsap,  188  Mo.  692 254 

Allen  V.  Pullman's  Palace  Car  Co.,  191  U.  S.  171 295,  296 

Allgeyer  v.  Louisiana,  165  U.  S.  578 247,  249 

Almy  V.  California,  24  How.   (U.  S.)    169 291 

Alzena,  The,  14  Fed.  Rep.  174 209 

American  Express  Co.  v.  Iowa,  196  U.  S.  133 129,  146 

American  Express  Co.  v.  People,  133  111.  649 235 

American  Refrigerator  Transit  Co.  v.  Hall,  174  U.  S.  70 277 

American  Steel,  etc.,  Co.  v.  Speed,  192  U.  S.  500 293 

Ames  V.  Kirby,  71  N.  J.  L.  442 84 

Ames  V.  Union  Pac.  R.  Co.,  64  Fed.  Rep.  165 180 

Anderson  v.  Louisville,  etc.,  R.  Co.,  62  Fed.  Rep.  46 171 

Anderson  v.  U.  S.,  171  U.  S.  604 142 

Applegarth  v.  State,  89  Md.  140 294 

Arbuckler.  Blackburn,  191  U.  S.  405,  113  Fed.  Rep.  616. .  .  .101,  140 

Arkansas  Southern  R.  Co.  v.  German  Nat.  Bank,  77  Ark.  482. .  .  172 

Armour  Packing  Co.  v.  Snyder,  84  Fed.  Rep.  136 137 

Asher  v.  Texas,  128  U.  S.  129 304 

Ashley  v.  Ryan,  153  U.  S.  436 313 

Associated  Press  v.  Com.,  (Ky.  1901)  60  S.  W.  Rep.  295 249 

Atlantic,  etc.,  Tel.  Co.  v.  Chicago,  etc.,  R.  Co.,  6  Biss.   (U.  S.) 

158,  2  Fed.  Cas.  No.  632 63 

Atlantic,  etc.,  Tel.  Co.  v.  Philadelphia,  190  U.  S.  160 147, 

276,  294,  301,  302 
[325] 


326  TABLE  OF  CASES  CITED 

PAQB 

Atty.-Gen.  v.  Electric  Storage  Battery  Co.,  188  Mass.  239 298 

Austin  V.  Tennessee,  179  U.  S.  343 52,  54,  88,  92,  99,  123, 

124,  125,  134,  256,  267 
Avery  v.  Fox,  1  Abb.  (U.  S.)  246,  2  Fed.  Cas.  No.  632 63,  74,  197 


B. 

Backus  V.  Fort  Street  Union  Depot  Co.,  169  U.  S.  557 71 

Bagg  V.  Wilmington,  etc.,  R.  Co.,  109  N.  Car.  279 160 

Balloek  v.  State,  73  Md.  1 245 

Baltimore,  etc.,  R.  Co.  v.  Maryland,  21  Wall.  (U.  S.)  456 289,  290 

Bangor  v.  Smith,  83  Me.  422 243 

Banks  v.  Manchester,  128  U,  S.  244 15 

Barden  v.  Columbia  County,  33  Wis.  445 25 

Bamaby  v.  State,  21  Ind.  450 209 

Bartlett  v.  Lockwood,  160  U.  S.  357 103 

Bauman  v.  Ross,  167  U.  S.  548 71,    72 

Bedford  v.  U.  S.,  192  U.  S.  217 64,     66 

Beine,  In  re,  42  Fed.  Rep.  545 123 

Beitzell  v.  District  of  Columbia,  21  App.  Cas.  (D.  C.)  49 13 

Benedict  v.  Columbus  Constr.  Co.,  59  N.  J.  Eq.  23 148 

Bennett  v.  American  Express  Co.,  83  Me.  236 155 

Benson  v.  McMahon,  127  U.  S.  457 15 

Bergen,  In  re,  115  Fed.  Rep.  339 147 

Blake  v.  McClung,  172  U.  S.  239 249 

Boardman  v.  Lake  Shore,  etc.,  R.  Co.,  84  N.  Y.  157 161 

Bogart  17.  State,  10  Ohio  Dec.  (Reprint)  365,  20  Cine.  L.  Bui.  458.  254 

Boston  Beer  Co.  v.  Massachusetts,  97  U.  S.  25 82 

Bowman  v.  Chicago,  etc.,  R.  Co.,  125  U.  S.  465 98,  131,  132,  149 

Boyer,  Ex  p.,  109  U.  S.  629 213 

Brass  v.  North  Dakota,  153  U.  S.  391 232 

Brennan  v.  Titusville,  153  U.  S.  289 79,  88,  324 

Brimmer  v.  Rebman,  138  U.  S.  78 106,  256,  258 

Broeck  v.  The  Barge  John  M.  Welch,  2  Fed.  Rep.  364 207,  260 

Brosnahan,  In  re,  18  Fed.  Rep.  62 139 

Brown  v.  Duchesne,  19  How.  (U.  S.)    183 215 

Brown  v.  Houston,  114  U.  S.  622 156,  157,  267,  291 

Brown  v.  Maryland,  12  Wheat.  (U.  S.)  419 5,  22,  121,  264,  309 

Brundage,  In  re,  96  Fed.  Rep.  963 137 

Budd  V.  New  York,  143  U.  S.  517 232 

Burdick  v.  People,  ( 1894)  149  111.  600 172 

Burlington,  etc.,  R.  Co.  v.  Dey,  82  Iowa  312 182 

Burrows  v.  Delta  Transp.  Co.,  106  Mich.  582 215 

Buttfield  V.  Stranahan,  192  U.  S.  470 49 

Byers,  Ex  p.,  32  Fed.  Hop.  404 47 


TABLE  OF  CASES  CITED  327 


C.  PAOS 

Caldwell  v.  North  Carolina,  187  U.  S.  622 121,  304 

California  v.  Central  Pac.  R.  Co.,  127  U.  S.  1 46,  158,  314 

Canada  Southern  R.  Co.  v.  International  Bridge  Co.,  8  Fed.  Rep. 

190 230 

Cannon  v.  New  Orleans,  20  Wall.  (U.  S.)  577 274 

Canton  v.  McDaniel,  188  Mo.  207 308 

Capital  City  Dairy  Co.  v.  Ohio,  183  U.  S.  238 113 

Capital  Traction  Co.  v.  Hof,  174  U.  S.  1 10 

Cardwell  v.  American  Bridge  Co.,  113  U.  S.  205 77,  87,  200,  224 

Carrier  v.  Gordon,  21  Ohio  St.  605 , 152 

Carroll  v.  Campbell,  108  Mo.  550 207 

Carson  River  Lumbering  Co.  v.  Patterson,  33  Cal.  334 203 

Central  of  Georgia  R.  Co.  v.  Murphey,  196  U.  S.  194,  116  Ga.  863.   162 

Central  Pac.  R.  Co.  v.  California,  162  U.  S.  91 314 

Central  Stock  Yards  Co.  v.  Louisville,  etc.,  R.  Co.,  118  Fed.  Rep. 

113 173 

Central  Union  Telephone  Co.  v.  State,  118  Ind.  194 189 

Chapman  v.  Miller,  2  Spears  L.  (S.  Car.)  769 210 

Charge  to  Grand  Jury,  2  Sprague  (U.  S.)  279,  30  Fed.  Cas.  No. 

18256    47 

Charles  A.  Sparks,  The,  16  Fed.  Rep.  480 209 

Cherokee  Nation  v.  Hitchcock,  187  U.  S.  294 9 

Cherokee  Nation  v.  Southern  Kansas  R.  Co.,  135  U.  S.  641 .... 

46,  60,  73,  158 

Cherokee  Trust  Funds,  117  U.  S.  288 10 

Chesapeake,  etc..  Canal  Co.  v.  Key,  3  Cranch  (C.  C.)  599,  5  Fed. 

Cas.  No.  2649 73 

Chesapeake,  etc.,  R.  Co.  v.  Kentucky,  179  U.  S.  388 167,  168 

Chicago,  etc.,  R.  Co.  v.  Carlinville,  200  111.  314 164 

Chicago,  etc.,  R.  Co.  v.  Fuller,  17  Wall.  (U.  S.)  560 20,  86,  186 

Chicago,  etc.,  R.  Co.  v.  Iowa,  94  U.  S.  155 92,  180,  181,  182 

Chicago,  etc.,  R.  Co.  v.  Solan,  169  U.  S.  133 17,  19,  85,  94,  251 

Chinese  Exclusion  Case,  130  U.  S.  581 238,  239 

Chy  Lung  v.  Freeman,  92  U.  S.  275 242 

Cincinnati,  etc..  Packet  Co.  v.  Bay,  200  U.  S.  179 151 

Cincinnati,  etc.,  Packet  Co.  v.  Catlettsburg,  105  U.  S.  559.. 206,  272 
Cincinnati,  etc.,  R.  Co.  v.  Interstate  Commerce  Commission,  162 

U.   S.    184 159 

Cisco  V.  Roberts,  36  N.  Y.  292 209 

City  of  Salem,  The,  37  Fed.  Rep.  846 220 

Clark  V.  Boston,  etc.,  R.  Co.,  64  N.  H.  323 164 

Clark  V.  U.  S.,  37  Ct.  CI.  503 62,     64 

Cleveland,  etc.,  R.  Co.  v.  Backus,  154  U.  S.  439 277,  283,  287 

Cleveland,  etc.,  R.  Co.  r.  Illinois,  177  U.  S.  514 95,  166 


328  TABLE  OF  CASES  CITED 

PAGB 

Clinton  Bridge,  10  Wall.  (U.  S.)  454 228 

Clyde  Steamship  Co.  v.  Charleston,  76  Fed.  Rep.  46 293 

Clymene,  The,  12  Fed.  Rep.  346,  9  Fed.  Rep.  164 209 

Coe  V.  Errol,  116  U.  S.  517 153,  155,  267,  292 

Cohen  v.  Virginia,  6  Wheat.  (U.  S.)  264 10 

Collector  v.  Day,  11  Wall.  (U.  S.)    113 25 

Collins  V.  Hills,  77  Iowa  181 123 

Collins  V.  New  Hampshire,  171  U.  S.  30 137 

Com.  V.  Caldwell,  (Mass.  1906)  76  N.  E.  Rep.  955 319 

Com.  ».  Gardner,  133  Pa.  St.  284 120 

Com.  V.  Huntley,   156  Mass.  236 75 

Com.  V.  Keary,  198  Pa.  St.  500 172 

Com.  V.  Pearl  Laundry  Co.,  105  Ky.  259 294 

Com.  V.  R.  I.  Sherman  Mfg.  Co.,  189  Mass.  76 75 

Com.  V.  Smith,  92  Ky.  38 279 

Compagnie  Frangaise,  etc.,  v.  Louisiana  State  Board  of  Health, 

186  U.  S.  380 104 

Connecticut  Mut.  L.  Ins.  Co.  v.  Spratley,  172  U.  S.  602 249 

Consumers'  Gas  Trust  Co.  v.  Harless,  131  Ind.  446 148 

Conway  v.  Taylor,  1  Black  (U.  S.)  603 207,  217 

Cook  V.  Marshall  County,  196  U.  S.  261 124 

Cook  V.  Pennsylvania,  97  U.  S.  566 4,  309,  322 

Cooley  V.  Board  of  Wardens,  12  How.  (U.  S.)  299 57,  209,  212 

Cooper  Mfg.  Co.  v.  Ferguson,  113  U.  S.  727 249 

Coppernoll  v.  Ketcham,  56  Barb.  (N.  Y.)  Ill 25 

Corbin  v.  Houlehan,  100  Me.  246 147 

Corfield  v.  Coryell,  4  Wash.  (U.  S.)  371,  6  Fed.  Cas.  No.  3230. .  237 

Cornell  v.  Coyne,  192  U.  S.  418 45 

Corson  v.  Maryland,  120  U.  S.  502 304 

Council  Bluffs  v.  Kansas  City,  etc.,  R.  Co.,  45  Iowa  338 161 

Covington,  etc..  Bridge  Co.  v.  Kentucky,  154  U.  S.  204.  .75,  209,  231 

Coxe  V.  State,  144  N.  Y.  396 201 

Craig  V.  Dimock,  47  111.  308 25 

Craig  V.  Kline,  65  Pa.  St.  399 202 

Crandall  v.  Nevada,  6  Wall.   (U.  S.)   35 267,  294 

Crawford  v.  Southern  R.  Co.,  56  S.  Car.  136 149 

Crigler  v.  Com.,  (Ky.  1905)   87  S.  W.  Rep.  276 133 

Crossman  V.  Lurman,  192  U.  S.  189 83,  140 

Crow  Dog,  Ex  p.,  109  V.  S.  556 9 

Cnitcher  v.  Kentucky,  141  U.  S.  47 41,  92,  163,  249,  298,  300 

Cuban  Steamship  Co.  v.  Fitzpatrick,  66  Fed.  Rep.  63 223 

Cummings  v.  Chicago,  188  U.  S.  410. 199 

Cunningham  v.  Tucker,  14  Fla.  251 219 

Currie  v.  Raleigh,  etc.,  Air  Line  R.  Co.,  135  N.  Car.  535 159 

Cfushing  V.  The  Ship  John  Fraser,  21  How.  (U.  S.)   184 204 

Cutting  V.  Florida  R.,  etc.,  Co.,  46  Fed.  Rep.  641 159 


TABLE  OF  CASES  CITED  329 


D.  PAGE 

Daniel  Ball,  The,  10  Wall.  (U.  S.)  657 165,  194,  216 

Davenport,  In  re,  102  Fed.  Rep.  540 235 

Dawson  v.  McCarty,  21  Wash.  314 25 

Debs,  In  re,  158  U.  S.  564 47 

Decker  v.  Baltimore,  etc.,  R.  Co.,  30  Fed.  Rep.  723 224,  228 

Delaware,  etc..  Canal  Co.  v.  Com.,  (Pa.  188)  17  Atl.  Rep.  175..   155 

Delaware  Railroad  Tax,  18  Wall.  (U.  S.)  206 276,  312 

Del  Norte,  The,  90  Fed.  Rep.  506 221 

Diamond  Glue  Co.  v.  U,  S.  Glue  Co.,  187  U.  S.  611 112,  249 

Diamond  Match  Co.  v.  Ontonagon,  188  U.  S.  82 154,  157,  292 

T)\7,e  r.  Lloyd-  86  Fed.  Rep,  651 237 

Dover  v.  PortsTnor.+h  Bridge,  17  N.  H.  200 224 

Downes  v.  Bidwell,  182  U.  S.  244 11. 

Downham  v.  Alexandria,  10  Wall.   ( U.  S. )  173 315 

Doyle  V.  Continental  Ins.  Co.,  94  U.  S.  540 249 

Ducat  V.  Chicago,  10  Wall.   (U.  S.)   410 249 

Duluth  Lumber  Co.  v.  St.  Louis  Boom,  etc.,  Co.,  17  Fed.  Rep. 

419    195,  203 

Duncan  v.  State,  105  Ga.  457 120 

Dunphy  v.  Kleinsmith,  11  Wall.  (U.  S.)   610 28,    29 

E. 

Eagle,  The,  8  Wall.   (U.  S.)  15 34 

Elgin  Watch  Co.  v.  Illinois  Watch  Case  Co.,  179  U.  S.  665 128 

Ellis  V.  Davis,  109  U.  S.  485 30 

Emert  v.  Missouri,  156  U.  S.  296 306 

Erb  V.  Morasch,  177  U.  S.  584 .92,  163 

Escanaba,  etc.,  Transp.  Co.  v.  Chicago,  107  U.  S.  678 77,  87, 

194,  196,  197,  198,  201,  224 

P. 

Fanning  v.  Gregoire,  16  How.  (U.  S.)  524 207 

Fargo  V.  Michigan,  121  U.  S.  230 148,  287 

Ficklen  v.  Shelby  County  Taxing  Dist.,  145  U.  S.  1 305 

Field  V.  Barber  Asphalt  Paving  Co.,  194  U.  S.  618 92,  254 

Fifield  V.  Close,  15  Mich.  505 25 

First  Municipality  v.  Pease,  2  La.  Ann.  538 206 

Florio,  In  re,  43  Fed.  Rep.  114 238 

Fong  Yue  Ting  r.  U.  S.,  149  U.  S.  698 238,  240 

Fort  Leavenworth  R.  Co.  v.  Lowe,  114  U.  S.  625 61 

Foster  v.  Davenport,  22  How.    (U.  S.)    244 216 

Foster  v.  New  Orleans,  94  U.  S.  246 203 

Freeman  v.  The  Undaunted,  37  Fed.  Rep.  662 210 

Friend  v.  U.  S.,  30  Ct.  CI.  94 67 


330  TABLE  OF  CASES  CITED 

PA08 

Fritts  V.  Palmer,  132  U.  S.  282 249 

Fritz,  Ex  p.,  86  Miss.  210 236 

Fry  V.  State,  63  Ind.  552 172 

G. 

Galveston  v.  Menard,  23  Tex.  349 201 

Galveston,  etc.,  R.  Co.  v.  Fales,  33  Tex.  Civ.  App.  457 19 

Garden  City,  The,  26  Fed.  Rep.  766 220 

Garnett,  In  re,   141  U.  S.   1 31,  221 

Gatton  V.  Chicago,  etc.,  R.  Co.,  95  Iowa  112 183 

Geer  v.  Connecticut,  161  U.  S.  519 234 

Georgia,  etc.,  R.  Co.  v.  Smith,  128  U.  S.  174 179 

Geraghty  v.  Hackley,  36  N.  J.  L.  459 205 

Gibbons  v.  Ogden,  9  Wheat.    (U.  S.)    1 4,  21,  40,  45,  49, 

88,  102,  196,  199,  207,  209,  217,  263,  269 

Gibson  v.  U.  S.,  166  U.  S.  269 67,  201 

Gilman  v.  Philadelphia,  3  Wall.    (U.  S.)   713 20,  49,  58, 

77,  87,  196,  197,  228 

Gladson  v.  Minnesota,  166  U.  S.  427 86,  95,  166 

Gloucester  Ferry  Co.  v.  Pennsylvania,  114  U.  S.  196 20,  41, 

59,  118,  202,  205,  208,  209,  276,  297 

Glover  v.  Flour  Inspectors,  48  Fed.  Rep.  348 257 

Gooch,  In  re,  44  Fed.  Rep.  276 137 

Gordon  Campbell,  The,  131  Fed.  Rep.  963 218 

Grand  Trunk  R.  Co.  v.  Backus,  46  Fed.  Rep.  211 196,  203,  206 

Great  Falls  Mfg.  Co.  v.  Atty.-Gen.,  124  U.  S.  581 70 

Green  v.  Bridgeton,  9  Cent.  L.  J.  206,  10  Fed.  Cas.  No.  5754. . .   170 

Green  v.  Steamer  Helen,  1  Fed.  Rep.  916 204 

Green,  etc.,  River  Nav.  Co.  v.  Chesapeake,  etc.,  R.  Co.,  88  Ky.  1 . .   224 

Greene,  In  re,  52  Fed.  Rep.  104 155 

Gretna  Green,  The,  20  Fed.  Rep.  901 220 

Grousendorf  v.  Howat,  77  Iowa  187 123 

Gulf,  etc.,  R.  Co.  V.  Dwyer,   75   Tex.   572 174 

Gulf,  etc.,  R.  Co.  V.  Gray,  (Tex.  Civ.  App.  1894)  24  S.  W.  Rep. 

837 149 

Gulf,  etc.,  R.  Co.  V.  Hefley,  158  U.  S.  98 77,  86,  174 

Gunn  V.  White  Sewing  Mach.  Co.,  57  Ark.  24 249 

Guy  V.  Baltimore,  100  U.  S.  434 40,  207,  252,  260 

H. 

H.  Zuberbier  Co.  v.  Harris,  (Tex.  Civ.  App.  1896)  35  S.  W.  Rep. 

403 120 

Hackley  v.  Geraghty,  34  N.  J.  L.  332 205 

Haley  ».  State,  42  Neb.  556 123 


TABLE  OF   CASES  CITED  331 

PAQE 

Hall  V.  De  Cuir,  95  U.  S.  485 76,  78,  92,  167 

Hall  V.  South  Carolina  R.  Co.,  25  S.  Car.  564 172 

Handel  v.  Chaplin,  111  Ga.  800 223 

Handly  v.  Anthony,  5  Wheat.  (U,  S.)  374 282 

Haney  v.  Compton,  36  N.  J.  L.  507 237 

Hanley  v.  Kansas  City  Southern  R.  Co.,  187  U.  S.  617 9,  13, 

14,  20,  148,  151,  152,  179,  180 
Hannibal,  etc.,  R.  Co.  u.  Husen,  95  U.  S.  465..  83,  84,  88,  104,  105,  241 

Harbor  Master  v.  Southerland,  47  Ala.  511 205 

Harman  v.  Chicago,  147  U.  S.  396,  140  111.  374 216,  297 

Harmon,  In  re,  43  Fed.  Rep.  372 123 

Harmon  v.  Chicago,  110  111.  400 215 

Harrigan  v.  Connecticut  River  Lumber  Co.,  129  Mass    580 202 

Harrison  v.  State,  91  Ala.  62 123 

Hart  V.  State,  100  Md.  595 170 

Hathaway  v.  McDonald,  27  Wash.  659 39 

Hays  V.  Pacific  Mail  Steamship  Co.,  17  How.  (U.  S.)  696 280 

Hayward  v.  U.  S.,  30  Ct.  CI.  219 66 

Hazel  Kirke,  The,  25  Fed.  Rep.  601 150,  220 

Head  Money  Cases,  112  U.  S.  580 239 

Heff,  Matter  of,  197  U.  S.  488 7 

Henderson  v.  New  York,  92  U.  S.  259 20,  21,  97,  214,  294 

Henderson  Bridge  Co.  v.  Henderson,  141  U.  S.  679, 173  U.  S.  592. .  281 

Henderson  Bridge  Co.  v.  Kentucky,  166  U.  S.  150 281,  312 

Hennington  v.  Georgia,  163  U.  S.  299 82,  84,  93,  171,  251 

Henry  v.  Roberts,  50  Fed.  Rep.  902 203 

Hepburn  v.  Ellzey,  2  Cranch  (U.  S.)  445 14 

Higgins  V.  Rinker,  47  Tex.  381 253 

Higgins  V.  Three  Hundred  Casks  Lime,  130  Mass.  1 256 

High  Bridge  Lumber  Co.  v.  U.  S.,  69  Fed.  Rep.  320 65 

Hinson  v.  Lott,  8  Wall.  (U.  S.)    148 323 

Hoffman  v.  Harvey,  128  Ind.  600 259 

Home  Ins.  Co.  v.  Augusta,  93  U.  S.  116 249 

Home  Ins.  Co.  v.  New  York,   134  U.  S.  594 249 

Hooper  v.  California,  155  U.  S.  648 246,  249 

Hopkins  v.  U.  S.,  171  U.  S.  578 20,  21,  142 

Hornbuckle  v.  Toombs,  18  Wall.   (U.  S.)   648 29 

Horn  Silver  Min.  Co.  v.  New  York,  143  U.  S.  305 310,  313 

Hospes  V.  O'Brien,  24  Fed.  Rep.  145 202 

Houston,  etc.,  R.  Co.  v.  Mayes,  201  U.  S.  321,  36  Tex.  Civ.  App. 

606 95.    160 

Houston  Direct  Nav.  Co.  v.  Insurance  Co.  of  North  America,  89 

Tex.   1 155 

Howard  r.  Ingersoll,  13  How.   (U.  S.)   381 9 

Howe  Mpch.  Co.  r.  GRge.  100  U.  S.  C76 78,  157.  253.  308 

Huse  V.  Glover,  119  U.  S.  543 197,  198,  201,  202,  269,  274 


332  TABLE  OF   CASES  CITED 


I.  PAGE 

Illinois  Cent.  R.  Co.  v.  Illinois,  146  U.  S.  387 201 

Illinois  Cent.  R.  Co.  v.  Illinois,  163  U.  S.  142 85,  95,  165 

Indiana  v.  Kentucky,  136  U.  S.  479 282 

Inman  Steamship  Co.  v.  Tinker,  94  U.  S.  238 272 

Inspection  of  Steam  Ferry  Boats,  (1884)  18  Op.  Atty.-Gen.  16..  215 
Interstate  Commerce  Commission  v,  Baltimore,  etc.,  R.  Co.,  145 

U.  S.  263 15 

Interstate   Commerce  Commission  V.  Detroit,   etc.,  R.   Co.,   167 

U.   S.   633 159 

Iowa  V.  McGregor,  76  Fed.  Rep.  956 135 

Iron  Mountain  R.  Co.  v.  Memphis,  96  Ted.  Rep.  113 184 

Irvine  v.  Marshall,  20  How.  (U.  S.)  558 27 


J. 

J.  Rosenbaum  Grain  Co.  v.  Chicago,  etc.,  R.  Co.,  130  Fed.  Rep. 

46    179,  233 

Jackson  v.V.  S.,  31  Ct.  CI.  318 66 

Jamieson  v.  Indiana  Natural  Gas,  etc.,  Co.,  128  Ind.  555 148 

Japanese  Immigrant  Case,  189  U.  S.  86 238 

Jervey,  Ex  p.,  66  Fed.  Rep.  857 133 

Jervey  v.  The  Carolina,  66  Fed.  Rep.  1013 133 

Jolly  V.  Terre  Haute  Draw-Bridge  Co.,  6  McLean  (U.  S.)  237,  13 

Fed.   Cas.   No.   7,441 196 

Johnson  v.  Chicago,  etc.,  Elevator  Co.,  119  U.  S.  388 46,  221. 

Johnson  v.  Loper,  46  N.  J.  L.  321 237 

Johnson  v.  Southern  Pac.  R.  Co.,  196  U.  S.  1 155 

Jones  V.  Keep,  19  Wis.  369 25 


K. 

Kavanaugh  v.  Southern  R.  Co.,  120  Ga.  62 163 

Kehrer  v.  Stewart,  197  U.  S.  60 299 

Keith  V.  State,  91  Ala.  2 123 

Kelley  v.  Rhoads,  188  U.  S.  1 152,  291 

Kentucky,  etc.,  Bridge  Co.  v.  Louisville,  etc.,  R.  Co.,  37  Fed. 

Rep.   567 176 

Kentucky  Bank  v.  Adams  Express  Co.,  93  U.  S.   174 15,     16 

Keokuk,  etc.,  Bridge  Co.  v.  Illinoia,  175  U.  S.  626 281,  313 

Keokuk  Northern  Line  Packet  Co.  v.  Keokuk,  95  U.  S.  80. .  .270,  273 

Kidd  V.  Pearson,  128  U.  S.  1 22,  40,  78,  82,  111,  118,  133,  153 

Kieffer,  Eso  p.,  40  Fed.  Rep.  399 258 


•TABLE   OF   CASES   CITED  333 

PAGE 

Kimmish  v.  Ball,  129  U.  S.  217 104 

King  V.  U.  S.,  59  Fed.  Rep.*  9 64 

Kinnebrew,  Ex  p.,  35  Fed.  Rep.  52 253 

Kinyon,  In  re,  9  Idaho  642 120 

Kirtland  v.  Hotchkiss,  100  U.  S.  491 276 

Kohl  r.  U.  S.,  91  U.  S.  367 60,  61,     69 


Lacey  v.  Palmer,  93  Va.  159 84 

Lafarier  v.  Grand  Trunk  R.  Co.,  84  Me.  286 172 

Lafayette  Ins.  Co.  v.  French,  18  How.   (U.  S.)  404 246,  249 

Lake  Shore,  etc.,  R.  Co.  v.  Ohio,  165  U.  S.  365 229 

Lake  Shore,  etc.,  R.  Co.  v.  Ohio,  173  U.  S.  285 86,  166 

Lake  Shore,  etc.,  R.  Co.  v.  Smith,  173  U.  S.  684 81 

Lang  V.  Lynch,  38  Fed.  Rep.  489 120 

Lasater  v.  Purcell  Mill,  etc.,  Co.,  22  Tex.  Civ.  App.  33 122 

Lees  V.  U.  S.,  150  U.  S.  476 238 

Lehigh  Valley  R.  Co.  v.  Pennsylvania,  145  U.  S.  192.... 5,  151,  288 
Leisy  v.  Hardin,  135  U.  S.  100. .  .  .38,  77,  88,  121,  123,  133,  143,  156 

Leloup  V.  Mobile,  127  U.  S.  640,  76  Ala.  401 188,  191,  296,  300 

Lem  Moon  Sing  v.  U.  S.,  158  U.  S.  538 238 

Leovy  v.  U.  S.,  177  U.  S.  621 195,  198 

Lewellen,  The,  4  Biss.  (U.  S.)   156,  15  Fed.  Cas.  No.  8307 220 

License  Cases,  5  How.    (U.  S.)   604 57,  131 

License  Tax  Cases,  5  Wall.   (U.  S.)   462 75 

Lindsay,  etc.,  Co.  v.  Mullen,  176  U.  S.  126 202 

Lin  Sing  v.  Washburn,  20  Cal.  534 243 

Liverpool  Ins.  Co.  v.  Massachusetts,  10  Wall.  (U.  S.)   566.. 245,  249 

Loeb,  Ea;  p.,  72  Fed.  Rep.  657 147 

Lord  V.  Goodall,  etc.,  Steamship  Co.,  102  U.  S.  541 75,  149,  221 

Lottawanna,  The,  21  Wall.  (U.  S.)  558 221 

Lottery  Case,   188  U.   S.  321 21,  22,  38,  50,  53,  54,  56,  244 

Louisiana  v.  Texas,  176  U.  S.  1 102 

Louisville  v.  Wehmhoff,  116  Ky.  812 84,  191 

Louisville,  etc.,  R.  Co.  v.  Eubank,   184  U.  S.  27 186 

Louisville,  etc.,  R.  Co.  v.  Kentucky,  161  U.  S.  677 90,  92,  161 

Louisville,  etc.,  R.  Co.  v.  Kentucky,  183  U.  S.  503 93,  185 

Louisville,  etc.,  R.  Co.  v.  Mississippi,  133  U.  S.  587 169,  250 

Low  V.  Austin,  13  Wall.   (U.  S.)  29 293 

Lowe  V.  Seaboard  Air  Line  R.  Co.,  63  S.  Car.  248 160 

Lowndes  v.  U.  S.,  105  Fed.  Rep.  838 66 

Luther  v.  Borden,  7  How.   (U.  S.)   1 25 

Luxton  V.  North  River  Bridge  Co.,  153  U.  S.  525 46,  60,  227 

Lyng  V.  Michigan,  135  U.  S.  161 133 


334  TABLE  OF  CASES  CITED 


M.  PAGE 

McAllister,  In  re,  51  Fed.  Rep.  282 137 

McCall  V.  California,  136  U.  S.  104 298 

McCann  v.  Com.,  198  Pa.  St.  509 139 

McCarter  v.  Hudson  County  Water  Co.,    (N.  J.  1905)    61  Atl. 

Rep.   710 202 

McCray  v.  U.  S.,  195  U.  S.  27 25 

McCready  v.  Virginia,  94  U.  S.  391 116,  237 

McCreary  v.   State,   73  Ala.  480 253 

M'CuUoch  V.  Maryland,  4  Wheat.  (U.  S.)  316 47 

McGregor  v.  Cone,  104  Iowa  465 123 

McNeill  V.  Southern  R.  Co.,  202  U.  S.  543 156,  173 

McNiel,  Ex  p.,  13  Wall.    (U.  S.)    236 55,  209 

McRae  v.  Bowers  Dredging  Co.,  90  Fed.  Rep.  360 281 

McReynolds  v.  Smallhouse,  8  Bush   (Ky.)    447 202 

Mager  v.  Grima,  8  How.  (U.  S.)  490 276 

Magner  v.  People,  97  111.  320 '. 235 

Maier,  Ex  p.,  103  Cal.  476 235 

Maine  v.  Grand  Trunk  R.  Co.,  142  U.  S.  217 283,  288,  313 

Manchester  v.  Massachusetts,  139  U.  S.  240,  152  Mass.  230 235 

Manderson,  In  re,  51  Fed.  Rep.  501 74 

Manigault  v.  Springs,  199  U.  S.  473 198 

Manufacturers  Gas,  etc.,  Co.  v.  Indiana  Natural  Gas,  etc.,  Co., 

155  Ind.  545 148 

Marshall  v.  Grimes,  41  Miss.  27 207 

Martin,  Ex  p.,  7  Nev.  140 310 

Marye  v.  Baltimore,  etc.,  R.  Co.,  127  U.  S.  117 276,  277 

Massachusetts  v.  Western  Union  Tel.  Co.,  141  U.  S.  40 285 

May  V.  New  Orleans,  178  U.  S.  496 122,  293 

Merriam  v.  U.  S.,  29  Ct.  CI.  250 66 

Michigan  Telephone  Co.  v.  Charlotte,  93  Fed.  Rep.  11 192 

Milan  Milling,  etc.,  Co.  v.  Gorten,  93  Tenn.  590 .* .   249 

Miller  v.  New  York,  109  U.  S.  385 194,  195,  230 

Mills  V.  St.  Clair  County,  7  111.  197 207 

Mills  V.  U.  S.,  46  Fed.  Rep.  738 66 

Milnor  v.  New  Jersey  R.  Co.,  3  Wall.  (U.  S.)  appendix,  782,  17 

Fed.  Cas.  No.  9620 229 

Minneapolis,  etc.,  R.  Co.  v.  Minnesota,  186  U.  S.  257 184 

Minnesota  v.  Barber,  136  U.  S.  313 97,  257 

Minnesota  v.  Brundage,  180  U.  S.  499 137 

Missouri,  etc.,  R.  Co.  v.  Haber,  169  U.  S.  613 82,  83,  88, 

91,  94,  105 

Missouri,  etc.,  R.  Co.  v.  McCann,  174  U.  S.  680 163 

Mitchell  r.  Steelman,  8  Cal.  363 219 

Mobile  County  v.  Kimball,  102  U.  S.  691 22,  59,  77,  197,  202 


TABLE  OF    CASES   CITED  335 

PAGB 

Monongahela  Nav.  Co.  v.  U.  S.,  148  U.  S.  312 60,  63,  69,    72 

Montgomery  v.  Portland,  190  U.  S.  89 199 

Moran  v.  New  Orleans,  112  U.  S.  69 279,  297 

Morgan  v.  Com.,  98  Va.   812 294 

Morgan  v.  Parham,  16  Wall.  (U.  S.)  471. 280 

Morgan's    Steamship   Co.   v.   Louisiana   Board  of   Health,    118 

U.  S.  455 46,  79,  102,  105,  274 

Morris  v.  Hitchcock,  194  U.  S.  388 9 

Morris  v.  U.  S.,  30  Ct.  CI.  162 64 

Mugler  V.  Kansas,  123  U.  S.  623 112 

Munn  V.  Illinois,  94  U.  S.  113 46,  232 

Muskegon  V.  Zeeryp,  134  Mich.  181 120 

Muskogee  Nat.  Telephone  Co.  v.  Hall,  4  Indian  Ter.  18,  118  Fed. 

Rep.    382 189 

Myers  v.  Baltimore  County,  83  Md.  385 162 

N. 

Nahant  v.  U.  S.,  136  Fed.  Rep.  273 63 

Nashville,  etc.,  R.  Co.  v.  Alabama,  128  U.  S.  96 85,  165,  251 

Nathan  v.  Louisiana,  8  How.  (U.  S.)  73 310 

Navigable  Waters,   ( 1891 )   20  Op.  Atty.-Gen.  101 196,  224 

Navigable  Waters,  (1896)  21  Op.  Atty.-Gen.  430 68,  228 

Navigable  Waters,   ( 1899)  22  Op.  Atty.-Gen.  332 213 

Navigable  Waters,   ( 1899)  22  Op.  Atty.-Gen.  501 203 

Neaderhouser  v.  State,  28  Ind.  257 195 

Neilson  v.  Garza,  2  Woods  (U.  S.)  287 106 

Nelms  V.  Edinburg  American  Land  Mortg.  Co.,  92  Ala.  157 249 

Nelson  v.  Leland,  22  How.  (U.  S.)  48 194 

Neves  v.  Scott,  13  How.  (U.  S.)  268 28 

New  Orleans  v.  Prats,   10  Rob.    (La.)   459 205 

New  Orleans  v.  Ship  Martha  J.  Ward,  14  La.  Ann.  287 203 

New  Orleans  v.  Stempel,  175  U.  S.  309 276 

Newport,  etc.,  Bridge  Co.  v.  U.  S.,  105  U.  S.  470 68,  229 

New  York  v.  Knight,    192  U.  S.  21 295 

New  York  v.  Miller,  202  U.  S.  584 312 

New  York  v.  Miln,  11  Pet.  (U.  S.)    102 294 

New  York  V.  Roberts,   171   U.   S.   658 249,310 

New  York,  etc.,  R.  Co.  v.  Interstate  Commerce  Commission,  200 

U.   S.  361 158 

New  York,  etc.,  R.  Co.  v.  New  York,  165  U.  S.  628... 86,  165,  251 

New  York,  etc.,  R.  Co.  v.  Pennsylvania,  158  U.  S.  431 77,  278 

New  York  L.  Ins.  Co.  v.  Cravens,  178  U.  S.  389 246 

Nishimura  Ekiu  v.  V.  S.,  142  U.  S.  651 238 

Norfolk,  etc.,  R.  Co.  v.  Com.,  93  Va.   749 171 

Norfolk,  etc.,  R.  Co.  v.  Pennsylvania,   136  U.  8.  114 169,  298 


336  TABLE  OF  OASES  CITED 

PAOB 

Norfolk,  etc.,  R.  Co.  v.  Sims,  191  U.  S.  441 131,  308 

North  Bloomfield  Gravel  Min.  Co.  v,  U.  S.,  88  Fed.  Rep.  664,  81 

Fed.   Rep.   243 197 

Northern  Securities  Co.  v.  U.  S.,  193  U.  S.  197 21,  40,  42, 

76,  114,  175,  290 

Northern  Transp.  Co.  v.  Chicago,  99  U.  S.  635 198 

Northwestern  Union  Packet  Co.  v.  St.  Louis,  100  U.  S.  423 273 

Nutting  V.  Massachusetts,  183  U.  S.  553 246,  311 


Ohio,  etc.,  R.  Co.  v.  Tabor,  98  Ky.  503 19 

Ohio  Valley  R.  Co.  v.  Lander,  104  Ky.  431 168 

Old  Dominion  Steamship  Co.  v.  Virginia,  198  U.  S.  299 279,  281 

Olsen  V.  Smith,  195  U.  S.  332 209,  210,  253 

Organ  v.  State,  56  Ark.  267 235 

Orient  Ins.  Co.  v.  Daggs,  172  U.  S.  557 249 

Osborne  v.  Florida,  164  U.  S.  654 296 

Osborne  v.  Mobile,  16  Wall.  (U.  S.)  479 296 

Ouachita  Packet  Co.  v.  Aiken,  121  U.  S.  444 272 

P. 

Pabst  Brewing  Co.  v,  Crenshaw,  198  U.  S.  17,  120  Fed.  Rep.  144. . 

144,  146,  323 

Pacific  Coast  Steamship  Co.  v.  Railroad  Com'rs,  9  Sawy.    (U. 

S.)    253 14 

Pacific  Coast  Steamship  Co.  v.  Railroad  Com'rs,  18  Fed.  Rep. 

10 150 

Pacific  Express  Co.  v.  Seibert,  142  U.  S.  339 288 

Pacific  Mail  Steamship  Co.  v.  Joliffe,  2  Wall.  (U.  S.)  450.  .210,  211 

Parker  v.  State,  (Tex.  Crim.  1905)  85  S.  W.  1155 131 

Parkersburg,  etc.,  Transp.  Co.  v.  Parkersburg,  107  U.  S.  691.  .206,  273 

Passenger  Cases,  7  How.  (U.  S.)  283 20,  21,  101,  105,  294 

Patapsco  Guano  Co.  v.  North  Carolina  Board  of  Agriculture,  171 

U.  S.  345 '. 98,  106,  107,  267,  292 

Patterson  v.  Bark  Eudora,  190  U.  S.  169 222 

Paul  17.  Virginia,  8  Wall.   (U.  S.)    168 41,  245,  249 

Peete  v.  Morgan,  19  Wall.  (U.  S.)  581 275 

Peik  V.  Chicago,  etc.,  R.  Co.,  94  U.  S.  164 78,  181,  182 

Peirce  v.  Van  Dusen,  78  Fed.  Rep.  693 19 

Pembina  Consol.  Silver  Min.,  etc.,  Co.  v.  Pennsylvania,  125  U.  S. 

181 250,  298 

Pennsylvania  v.  Wheeling,  etc..  Bridge  Co.,  13  How.  (U.  S.)  518, 

18  How.  (U.  S.)  421 177,  178,  196,  224,  228,  229 

Pennsylvania  R.  Co.  v.  Baltimore,  etc.,  R.  Co.,  30  Fed.  Rep.  723.  228 


TABLE  OF  CASES  CITED  337 

PAGE 

Pennsylvania  R.   Co.  v.  Baltimore,  etc.,  R.  Co.,  37  Fed.  Rep. 

129    227,  228 

Pennsylvania  R.  Co.  v.  Hughes,  191  U.  S.  477 19,  93 

Pennsylvania  Telephone  Co.,  Matter  of,  48  N.  J.  Eq.  91 189 

Pensacola  Tel.  Co.  v.  Western  Union  Tel.  Co.,  96  U.  S.  1 .21, 

40,  188,  190,  249 

People  V.  Buffalo  Fish  Co.,  164  N.  Y.  92 236 

People  V.  City  Prison,   157  N.  Y.  116 172 

People  V.  Coler,  166  N.  Y.  144 : 254 

People  V.  Compagnie  Gen6rale  Transatlantique,  107  U.  S.  59 . . 

6,  267,  297 

People  V.  Hawkins,  85  Hun   (N.  Y.)   43,  157  N.  Y.  1 264 

People  V.  Hesterberg,  184  N.  Y.  126 235 

People  V.  Lassen,  (Mich.  1906)   106  N.  W.  Rep.  143 236 

People  v.  Miller,  178  N.  Y.  194 233 

People  V.  Niagara  Fruit  Co.,  173  N.  Y.  629,  75  N.  Y.  App.  Div. 

11 153 

People  V.  O'Neil,  110  Mich.  324 235 

People  V.  Roberts,  158  N.  Y.   162 313 

People  V.  Sperry,  50  Barb.   (N.  Y.)    170 209 

People  V.  Tax,  etc.,  Com'rs,  48  Barb.  {N.  Y.)   157 279 

People  V.  Wabash,  etc.,  R.  Co.,  104  111.  476 182 

People  V.  Wells,  107  N.  Y.  App.  Div.  15,  184  N.  Y.  275 293 

Perry  v.  Torrence,  8  Ohio  521 279 

Phelps  V.  Racey,  60  N.  Y.  10 235 

Philadelphia  v.  Western  Union  Tel.  Co.,  82  Fed.  Rep.  797 302 

Philadelphia,   etc.,    Steamship    Co.   v.   Pennsylvania,    122  U.    S. 

326 148,  287,  312 

Philadelphia  F.  Assoc,  v.  New  York,  119  U.  S.  110 .  .245,  249 

Pickard  r.  Pullman  Southern  Car  Co.,  117  U.  S.  34 '. 294 

Pittman  v.  Pacific  Express  Co.,  24  Tex.  Civ.  App.  595 19 

Pittsburg,  etc..  Coal  Co.  v.  Bates,  156  U.  S.  577 59,  156, 

157,  267,  291 

Pittsburg,  etc.,  Coal  Co.  v.  Louisiana,  156  U.  S.  690, 99,  100 

Pittsburgh,  etc.,  R.  Co.  v.  Backus,  154  U.  S.  421 283,  287 

Plessy  V.  Ferguson,  163  U.  S.  537 169 

Plumley  v.  Massachusetts,  155  U.  S.   461 75,  83,  138 

Pollard  V.  Hagan,  3  How.  (U.  S.)  212 10 

Pollock  V.  Farmers'  L.  &  T.  Co.,  158  U.  S.  601 25 

Pool,  Ex  p.,  2  Va.  Cas.  &76 223 

Porter  v.  Charleston,  etc.,  R.  Co.,  63  S.  Car.  169 160 

Postal  Tel.-Cable  Co.  t\  Adams,  155  U.  S.  688 77,  277,  314 

Postal  Tel.-Cable  Co.  v.  Baltimore,  156  U.  S.  210 302 

Postal  Tel.-Cable  Co.  v.  Charleston,  163  U.  S.  692,  66  Fed.  Rep. 

419 300,  301 

22 


338  TABLE   OF    CASES   CITED 

PA6H 

Postal  Tel.-Cable  Co.  v.  New  Hope,  192  U.  S.  55 147,  302 

Postal  Tel.-Cable  Co.  v.  Taylor,  192  U.  S.  64 302 

Postal  Tel.-Cable  Co.  v.  Umstadter,  103  Va.  742 193 

Pound  V.  Turek,  95  U.  S.  459 87,  198,  206 

Powell  V.  State,  69  Ala.  10 253 

Pringle,  In  re,  67  Kan.  364 304 

Propeller  Genesee  Chief  v.  Fitzhugh,  12  How.    (U.  S.)    443 32 

Prosser  v.  Northern  Pae.  R.  Co.,  152  U.  S.  59 203 

Providence,  etc..  Steamship  Co.  v.  Hill  Mfg.  Co.,  109  U.  S.  99. . .   221 

Pullman  Co.  v.  Adams,  189  U.  S.  420 296 

Pullman  Southern  Car  Co.  v.  Gaines,  3  Tenn.  Ch.  587 294 

Pullman's  Palace  Car  Co.  v.  Pennsylvania,  141  U.  S.  18 

276,   277,  282,  283 

Pullman's  Palace  Car  Co.  v.  Twombly,  29  Fed.  Rep.  658 277 

Pumpelly  v.  Green  Bay,  etc..  Canal  Co.,  13  Wall.   (U.  S.)   166. . 

64,  65,     66 

R. 

Rahrer,  In  re,  140  U.  S.  545 51,  144 

Railroad  Commission  Cases,  116  U.  S.  307 179,  250 

Railroad  Com'r  v.  Wabash  R.  Co.,  123  Mich.  669 184 

Railroad  Com'rs  v.  Western  Union  Tel.  Co.,  113  N.  Car.  213 188 

Rasmussen  v.  Idaho,  181  U.  S.  198 104 

Ratterman  v.  Western  Union  Tel.  Co.,  127  U.  S.  411 289 

Reagan  v.  Mercantile  Trust  Co.,  154  U.  S.  413 180,  250,  251 

Reid  V.  Colorado,  187  U.  S.  137 91,  103,  104,  149 

Heymann  Brewing  Co.  v.  Brister,  179  U.  S.  445 321 

Rhea  v.  Newport  News,  etc.,  R.  Co.,  50  Fed.  Rep.  16 195,  224 

Rhodes  v.  Iowa,  170  U.  S.  412 145,  155 

Richmond  v.  Southern  Bell  Telephone,  etc.,  Co.,  174  U.  S.  761..    189 
Richmond,  etc.,  R.  Co.  v.  Patterson  Tobacco  Co.,  169  U.  S.  311. . 

19,    93,  162 

Robbins  v.  Shelby  County  Taxing  Dist.,  120  U.  S.  489 157, 

304,  306,  324 

Robert  Dollar,  The,  115  Fed.  Rep.  218 221 

Robertson  v.  Baldwin,  165  U.  S.  275 223 

Robert  W.  Parsons,  The,  191  U.  S.  17 213 

Root  V.  Lake  Shore,  etc.,  R.  Co.,  105  U.  S.  189 30 

Roselle  v.  Farmers'  Bank,  141  Mo.  36 84,  246 

S. 

€t.  Bernard  v.  Cleveland,  etc.,  R.  Co.,  4  Ohio  Dec.  371 163 

.St.  Clair  County  v.  Interstate  Sand,  etc.,  Transfer  Co.,  192  U.  S. 

464 208,   297,  298 


TABLE  OF  CASES  CITED  339 

PAGE 
St.  Louis  V.  Schulenburg,  etc.,  Lumber  Co.,  13  Mo.  App.  56....  206 
St.  Louis  V.  Western  Union  Tel.  Co.,  148  U.  S.  92,  149  U.  S. 

465 301,  302 

St.  Louis  V.  Wiggins  Ferry  Co.,  11  Wall.  (U.  S.)  423 280 

Sanders,  In  re,  52  Fed.  Rep.  802 253 

Sands  v.  Manistee  River  Imp.  Co.,  123  U.  S.  288 197,  201,  202 

Savannah  v.  State,  4  Ga.  26 206 

Sawrie  v.  Tennessee,  82  Fed.  Rep.  615 135 

Sawyer,  In  re,  124  U.  S.  200 28 

Sayre  v.  Phillips,  148  Pa.  St.  482 252 

Schechter,  In  re,  63  Fed.  Rep.  695 253 

Scheitlin,  In  re,  99  Fed.  Rep.  272 139 

Schmidt  v.  People,   18  Colo.  78 258 

Schollenberger  v.  Pennsylvania,  171  U.  S.  1..84,  88,  99,  121,  124,  135 

Scott,  Ex  p.,  66  Fed.  Rep.  45 137 

Scott  V.  Donald,  165  U.  S.  58 256 

Scott  V.  Willson,  3  N.  H.  321 202 

Scranton  v.  Wheeler,  179  U.  S.  141 67 

Sedgwick  v.  State,   (Tex.  Crim.  1905)   85  S.  W.  Rep.  813 13i 

Shaw  V.  McCandless,  36  Miss.  296 218 

Sherlock  i'.  Ailing,  93  U.  S.  99 ' 93,  221 

Shively  v.  Bowlby,  152  U.  S.  1 201 

Shoemaker  v.  U.  S.,  147   U.  S.  282 10 

Sinnot  v.  Davenport,  22  How.   (U.  S.)    227 91,  215,  218 

Sloman  v.  William  D.  C.  Moebs  Co.,  139  Mich.  334 133 

Smith  V.  Alabama,   124  U.   S.  465 15,  18,  85,  92,  164 

Smith  V.  American  Nat.  Bank,  89  Fed.  Rep.  832 28 

Smith  V.  Jackson,  103  Tenn.  673 294 

Smith  V.  Maryland,  18  How.   (U.  S.)   71 217,  237 

Smith  V.  Short,  20  Ala.  385 25 

Smith  V.  St.  Louis,  etc.,  R.  Co.,  181  U.  S.  248 104 

Smith  r.  State,  54  Ark.  248 123 

Smith  V.  State,  100  Tenn.   494 169,  170 

South  Cambria,  The,  27  Fed.  Rep.  525 209 

South  Carolina  v.  Georgia,  93  U.  S.  4 178,  196 

Southern  Express  Co.  v.  Goldberg,  101  Va.  619 179 

Southern  Steamship  Co.  v.  Portwardens,  6  Wall.  (U.  S.)  31.205,  272 

Spellman  v.  New  Orleans,  45  Fed.  Rep.  3 120 

Spraigue  v.  Thompson,  118  U.  S.  90,  69  Ga.  409 210 

Stamp  Tax  on  Writs,   (1866)    12  Op.  Atty.-Gen.  23 25 

Standard  Oil  Co.  v.  Combs,  96  Ind.  179 291 

Stanley  v.  Wabash,  etc.,  R.  Co.,  100  Mo.  435 149 

State  V.  Addington,  77  Mo.  110 139 

State  V.  Applegarth,   81    Md.   293 294 

State  V.  Baltimore,  etc.,  R.  Co.,  24  W.  Va.  78"   171 


340  TABLE  OF  CASES  CITED 

PAGE 

state  15.  Bixman,  162  Mo.  1 107 

State  V.  Bowman,  78  Iowa  519 123 

State  V.  Bruce,  55  W.  Va.   384 137 

State  V.  Chapman,  1   S.  Dak.  414 123 

State  17.  Charleston,  4  Rich.  L.    (S.  Car.)   286 279 

State  V.  Coonan,  82  Iowa  400 123 

State  V.  Corbett,  57  Minn.  345 172 

State  V.  Corson,  67  N.  J.  L.  178 237 

State  V.  Davidson,  50  La.  Ann.  1297 120 

State  V.  Deschamp,  53  Ark.  490 253 

State  V.  Edwards,  94  Minn.  225 305 

State  V.  Emert,   103  Mo.  241 306 

State  V.  Geer,    61    Conn.    144 234 

State  V.  Harbourne,    70   Conn.    484 84,  191 

State  V.  Harrub,  95  Ala.  176 237 

State  V.  Hickox,  64  Kan.  650 147 

State  V.  Hicks,  44  La.  Ann.  770 171 

State  V.  Indiana,  etc..  Oil,  etc.,  Co.,  120  Ind.  575 148 

State  V.  Indiana,  etc.,  R.  Co.,  133  Ind.  69 163 

State  V.  International,  etc.,  R.  Co.,  31  Tex.  Civ.  App.  219 152 

State  V.  Intoxicating  Liquors,  94  Me.    335 133 

State  V.  Intoxicating  Liquors,  58  Vt.    594 131 

State  V.  Judy,  7  Mo.  App.  524 235 

State  V.  Klein,    126  Ind.   68 259 

State  17.  Leighton,  83  Me.  419 224 

State  V.  Medbury,  3  R.  I.  138 237 

State  17.  Miller,  86  Iowa  638 123 

State  17.  Omaha,  etc.,  R.  Co.,  113  Iowa  30 253 

State  17.  O'Neil,  58  Vt.  140 131 

State  17.  Penny,  19  S.  Car.  218 .' 209 

State  17.  Rogers,  95  M«.  94 139 

State  17.  San  Antonio,  etc.,  R.  Co.,  32  Tex.  Civ.  App.  68 152 

State  17.  Saunders,  19  Kan.  127 235 

State  17.  Southern  R.  Co.,  119  N.  Car.  814 171 

State  17.  Stripling,  113  Ala.  120 84 

State  17.  The  Steamship  Constitution,  42  Cal.  578 242 

State  17.  Thompson,   (Oregon  1906)   94  Pac.  Rep.  476 172 

State  17.  Virginia-Carolina  Chemical  Co.,  71   S.   Oar.  544 76 

State  17.  Wagener,  77  Minn.  483 , 305 

State  17.  Zimmerman,  78  Iowa  614 123 

State   Board  of   Assessors   17.    Comptoir  Nat.   d'Escompte,    191 

U.    S.    388 276 

State  Freight  Tax  Case,  15  Wall.    (U.  S.)   232 20,  59,  295 

State  Tax  on  Railway  Gross  Receipts,  15  Wall.   (U.  S.)  284...  287 

State  Tonnage  Tax  Cases,  12  Wall.   (U.  S.)   204 4,  20,  21, 

214,  271,  279 


TABLE   or    CASES   CITED  341 

'  PAGE 

Steamboat  Cheeseman  v.  Two  Ferryboats,  2  Bond  (U.  S.)   363, 

5  Fed.  Gas.  No.  2633 209 

Steamboat  New  York  v.  Rea,  18  How.   (U.  S.)   223 204,  220 

Steamboat  Orleans  v.  Phcebus,  11  Pet.   (U.  S.)    175 32 

Steamboat  Sunswick,    6   Ben.    (U.    S.)    112,   23    Fed.   Gas.    No. 

13,624 215 

Steamboat  Thomas  Jefferson,  10  Wheat.   (U.  S.)  428 32 

Stedman  v.  State,  64  Ind.  597 172 

Stephens  v.  Cherokee  Nation,  174  U.  S.  445 9 

Sternweis  v.  Stilsing,  52  N.  J.  L.  517 120 

Stevenson  v.  Fain,  195  U.  S.  165 3Q 

Stockard  v.  Morgan,  185  U.  S.  27 304 

Stockton  V.  Baltimore,  etc.,  R.  Go.,  32  Fed.  Rep.  9 64,  212, 

227,  228,  250 

Stoutenburgh  v.  Hennick,    129   U.   S.    141 12,  14,  304 

Swift  V.  Sutphin,  39  Fed.  Rep.  630 258 

Swift  V.  U.  S.,  196  U.  S.  375 141 


T. 

Talbot  County  v.  Queen  Anne's  County,  50  Md.  245 224 

Taylor  v.  Postal  Tel.-Gable  Co.,  202  Pa.  St.  584 302 

Tennessee  v.  Pullman  Southern  Car  Co.,  117  U.  S.  51,  22  Fed. 

Rep.    276 .' 294 

Texas  v.  White,  7  Wall.  (U.  S.)  700 26 

Thames  Bank  v.  Lovell,  18  Conn.  500 202 

Thingvalla  Line  i?.  U.  S.,  24  Ct.  CI.  255 239 

Thompson  v.  Darden,  198  U.  S.  310 210,  212,  259 

Thomson  v.  Union  Pac.  R.  Co.,  9  Wall.  (U.  S.)  579 314 

Tiernan  v.  Rinker,  102  U.  S.  123 320 

Tinker  v.  State,  91  Ala.  115 123 

Titusville  v.  Brennan,  143  Pa.  St.  642 79 

Tonnage  Tax  Cases,  62  Pa.  St.  286 295 

Trade-Mark  Cases,  100  U.  S.  82 39,  40,  127,  128 

Train  v.  Boston  Disinfecting  Co.,  144  Mass.  523 103 

Tucker  v.  Potter,  35  Conn.  43 25 

Turner  v.  Maryland,  107  U.  S.  38 : 98,  99,  106 

Turpin  v.  Burgess,  117  U.  S.  504 45 


U. 

Ulysaes,  The,  Brun.  Col.  Cas.    (U.   S.)    529,  24  Fed.  Cas.  No. 

14,330 47 

Union  Pac.  R.  Co.  v.  Peniston,  18  Wall.    (U.  S.)    5 314 

Union  Refrigerator  Transit  Co.  v.  Kentucky,  199  U.  S.  194 277 


342  TABLE   OF    CASES   CITED 

PAGE 

Union  Refrigerator  Transit  Co.  v.  Lynch,  177  U.  S.  149 277 

U.  S.  V.  Anderson,   10  Blatehf.    (U.  S.)    226,  24  Fed.  Cas.  No. 

14447    215 

U.  S.  V.  Bellingham  Bay  Boom  Co.,  176  U.  S.  211 198 

U.  S.  V.  Boston,  etc.,  R.  Co.,  15  Fed.  Rep.  209 149 

U.  S.  V.  Boyer,  85  Fed.  Rep.   425 Ill,  155 

U.  S.  V.  Britton,  108  U.  S.  199 15 

U.  S.  V.  Cole,  5  McLean  (U.  S.)  513,  25  Fed.  Cas.  No.  14832.  . . 

47,  215 

U.  S.  V.  Coombs,  12  Pet.    (U.  S.)    72 47,  215 

U.  S.  V.  Craig,  28  Fed.  Rep.  795 238 

U.  S.  V.  Dewitt,  9  Wall.  41 119 

U.  S.  V.  E.  C.  Knight  Co.,  156  U.  S.  1 Ill,  113,  116 

U.  S.  V.  Eaton,  144  U.  S.  677 15 

U.  S.  V.  Engerman,  46  Fed.  Rep.  176 70 

U.  S.  V.  Forty-three  Gallons  Whiskey,  93  U.  S.  188 9 

U.  S.  V.  Forty-three  Gallons  Whiskey,  108  U.  S.  491 9 

TJ.  S.  V.  Fox,  95  U.  S.  670 48 

U.  S.  V.  Gratiot,  14  Pet.  (U.  S.)  526 10 

U.  S.  V.  Great  Falls  Mfg.  Co.,  112  U.  S.  645 60 

U.  S.  V.  Green,  137  Fed.  Rep.  179 143 

U.  S.  V.  Hudson,  7  Cranch    (U.  S.)    32 36 

U.  S.  V.  Jackson,  26  Fed.  Cas.  No.   15458 207,  215 

V.  S.  V.  Joint  Traffic  Assoc,  171  U.  S.  505 50,  174 

U.  S.  V.  Jones,  109  U.  S.  513 60,  70,     71 

U.  S.  V.  Kagama,  118  U.  S.  375 9,     10 

U.  S.  V.  Keokuk,  etc.,  Bridge  Co.,  45  Fed.  Rep.  178 228 

U.  S.  V.  Lynah,  188  U.  S.  445 62,     65 

U.  S.  V.  Marigold,  9  How.    (U.  S.)    560 196 

U.  S.  V.  Moline,  82  Fed.  Rep.  592 68 

U.  S.  V.  Oregon  R.,  etc.,  Co.,  16  Fed.  Rep.  524 74 

U.  S.  V.  Popper,  98  Fed.  Rep.  423 54 

U.  S.  V.  Trans-Missouri  Freight  Assoc,  166  U.  S.  290 47,     50 

U.  S.  V.  Whelpley,  125  Fed.  Rep.  616 14 

U.  S.  V.  Williams,  194  U.  S.  279 239 

U.  S.  V.  Worrall,  2  Dall.  (U.  S.)  384 15 


V. 

Van  Brocklin  v.  Tennessee,  117  U.  S.  151 61 

Vance  v.  W.  A.  Vandercook  Co.,  170  U.  S.  438 83,  100,  145,  255 

Veazie  v.  Moor,  14  How.  (U.  S.)   568 199,  200,  213 

Vicksburg  v.  Tobin,  100  U.  S.  430 273 

Voight  V.  Wright,  141  U.  S.  63 257 

Von  Steuben  v.  Central  R.  Co.,  4  Pa.  Dist.  153 251 


TABLE   OF    CASES   CITED  343 


W.  PAGE 

W.  W.  Cargill  Co.  v.  Minnesota,  180  U.  S.  452 3ia 

Wabash,  etc.,  R.  Co.  v.  Illinois,  118  U.  S.  557 78,  182 

Wabash  R.  Co.  v.  Defiance,  167  U.  S.  88 82 

Wagner  v.  Meakin,  92  Fed.  Rep.  76 121 

Wall  V.  Norfolk,  etc.,  R.  Co.,  52  W.  Va.  485 160 

Walling  V.  Michigan,  116  U.  S.  446 58,  304,  315,  319 

Ward  V.  Maryland,  12  Wall.  (U.  S.)  418 31« 

Waring  v.  Mobile,  8  Wall.  (U.  S.)   110 293 

Warner  v.  Searle,  etc.,  Co.,  191  U.  S.  195 128 

Warren  v.  Paul,  22  Ind.  276 25 

Wasserboehr  v.  Boulier,  84  Me.  165 120 

Waterbury  v.  Newton,  50  N.  J.  L.  534 139 

Waters-Pierce  Oil  Co.  v.  Texas,  177  U.  S.  28 78,  249 

W^ebb  V.  Dunn,  18  Fla.  721 205 

W^ebber  v.  Virginia,  103  U.  S.  344 317 

Weil  V.  Calhoun,  25  Fed.  Rep.  865 253 

Welton  V.  Missouri,  91  U.  S.  275 20,  59,  157,  316 

Western  Paper  Bag  Co.  v.  Johnson,    (Tex.  Civ.  App.  1896)    38 

S.  W.  Rep.  364 120 

Western  Union  Tel.  Co.  v.  Alabama  State  Board  of  Assessment, 

132  U.  S.  473 188,  289 

Western  Union  Tel.  Co.  v.  Atlantic,  etc.,  Tel.  Co.,  5  Nev.  102. .    191 

Western  Union  Tel.  Co.  v.  Atty.-Gen.,  125  U.  S.  530 279,  285 

Western  Union  Tel.  Co.  v.  Burgess,    (Tex.   Civ.  App.   1897)    43 

S.  W.  Rep.   1033 191 

Western  Union  Tel.  Co.  v.  Call  Pub.  Co.,  181  U.  S.  92 16,     18 

Western  Union  Tel.  Co.  v.  Howell,  95  Ga.  194 193 

Western  Union  Tel.  Co.  v.  Hughes,  104  Va.  240 192 

Western  Union  Tel.  Co.  v.  James,  162  U.  S.  650,  90  Ga.  254.. 

87,  188,  192,  251 

Western  Union  Tel.  Co.  v.  Lark,  95  Gu.  806 192 

Western  Union  Tel.  Co.  v.  Meredith,  95  Ind.  93 193 

Western  Union  Tel.  Co.  v.  Mississippi  R.  Commission,  74  Miss. 

80 191 

Western  Union  Tel.  Co.  v.  Missouri,  190  U.  S.  412 279,  313 

Western  Union  Tel.  Co.  v.  New  Hope,  187  U.  S.  419 301,  302 

Western  Union  Tel.  Co.  v.  New  York,  38  Fed.  Rep.  552 192 

Western  Union  Tel.  Co.  v.  Pendleton,  122  U.  S.  347 87, 

188,  191,  193 
Western  Union  Tel.  Co.  v.  Pennsylvania  R.  Co.,  195  U.  S.  540. .    191 

Western  Union  Tel.  Co.  v.  Reynolds,  100  Va.  459 188 

Western  Union  Tel.  Co.  v.  Taggart,   163  U.  S.  1 276,  283 

Western  Union  Tel.  Co.  v.  Texas,  105  U.  S.  460 188,  301 

Wheaton  v.  Peters,  8  Pet.  (U.  S.)  591 16 


344  TABLE  OE  CASES  CITED 

PAGH 

Wheeling,  etc.,  Transp.  Co.  v.  Wheeling,  99  U.  S.  273 •  .270,  279 

White's  Bank  v.  Smith,  7  Wall.  (U.  S.)  646 216,  218 

Wiggins  Ferry  Co.  v.  East  St.  Louis,  107  U.  S.  365 208, 

274,  297,  298 

Willamette  Iron  Bridge  Co.  v.  Hatch,  125  U.  S.  1 68,  228 

William  Law,  The,  14  Fed.  Rep.  792 209 

Williams  v.  Fears,   179  U.  S.  270 311 

Williams  v.  The  Lizzie  Henderson,  29  Fed.  Cas.  No.  17726a 212 

Williams  v.  U.  S.,  104  Fed.  Rep.  50 66 

Willson  V.  Black  Bird  Creek  Marsh  Co.,  2  Pet.  (U.  S.)  245 198 

Wilson  V.  McNamee,  102  U.  S.  572 209,  211 

Winifrede  Coal  Co.  v.  Central  R.,  etc.,  Co.,  11  Ohio  Dec.  (Reprint) 

35,  24  Cine.  L.  Bui.  173 201,  228 

Wisconsin,  etc.,  R.  Co.  v.  Jacobson,  179  U.  S.  287 94,  161 

Wong  Wing  t7.  U.  S.,  163  U.  S.  228 238,  241 

Wood  V.  Stockwell,  55  Me.  76 219 

Woodruff  V.  Parham,  8  Wall.   (U.  S.)   123 4,  265,  306 

Worcester  v.  Georgia,  6  Pet.   (U.  S.)   515 9 

Worsley  v.  Second  Municipality,  9  Rob.  (La.)  324 206 

Worthen,  In  re,  58  Fed.  Rep.  467 137 

Y. 

Yesler  v,  Washington  Harbor  Line  Com'rs,  146  U.  S.  646 203 

Yick  Wo  V.  Hopkins,  118  U.  S.  356. 81 

Young,  Ex  p.,  36  Oregon  247 223 


INDEX 


Admiralty  jnrisdiction  —  PA6B 

English  doctrine  abandoned 33 

English  doctrine  first  followed 32 

Judicial  power  to  determine  territorial  jurisdiction  under 

general  statute    35 

Limitation  of  vessel  owner's  liability 31 

Over   canals 213 

Over  ferries    209  note 

Power  of  Congress  to  determine  scope  of 31 

Power  of  Congress  to  limit  territorial  jurisdiction 35 

Scope  of,  power  of  Congrciss  to  define 31 

Statutory  departure  from  English  doctrine 32 

Statutory   departure   from   English   doctrine  generally  fol- 
lowed     „ 34 

Territorial  jurisdiction,  power  of  Congress  to  determine...     32 

Admission  of  aliens  — 

See  Aliens. 

Adoption  of  the  Constitution — 

Causes  which  brought  about 3 

Adulteration  of  foods  — 

States   may   prohibit 83 

Agents  — 

Different  agents  for  sale  and  delivery 121 

Right  to  sell  goods  by 121 

Aliens  — 

Anarchist*,  exclusion  of 238 

Constitutional  personal  rights  applicable  to 240 

Head  money  tax 239 

Power  of  Congress  to  admit  on  conditions 238 

Power  of  Congress  to  exclude ". 238 

Power  of  Congress  to  expel  or  deport 239 

States,   exclusion   by 243  note 

Anarchists  — 

Exclusion  of 238 

[345] 


346  INDEX 

Anti-Trnst  Law—  paqe 

Combination  of  competing  railroad  companies 42 

Combination  of  manufacturers  to  abstain  from  competition.  113 

Combination  of  manufacturers  to  monopolize  manufacture. .  113 

Combination  of  railroads  to  control  rates 174 

Contract  of  sale  of  vessels 151 

Injunction,  remedy  by 47 

Meat  dealers,  combination  of 141 

Propositions  stated  in  Northern  Securities  case 43 

Article  I,  section  8,  clause  1  — 

Head  money  tax 239 

Meaning  of  "  imposts,"  "  imports,"  and  "  exports  " 265 

Article  I,  section  8,  clause  2  — 

Pilots   and  pilotage 212  note 

Article  I»  section  8,  clause  3  — 

Clause  quoted    5 

Article  I,  section  8,  clause  10  — 

Piracies  and  felonies,  power  to  define  and  punish  — 

Protection   of   commerce 47 

Article  I,  section  8,  clause  17  — 

Clause  quoted  10,  61  note 

Article  I,  section  8,  clause  18  — 

Power   of    Congress    to    carry    into    execution    the    defined 

powers    81 

Article  I,  section  9  — - 

Prohibitions  or  limitations  on  federal  power 7 

Article  I,  section  9,  clause  1  — 

Clause  quoted    6 

Exclusive  reference  to  persons  of  African  race 267 

Article  I,  section  9,  clause  5  — 

Clause  quoted    6 

Limitation  on  taxing  power 45 

Article  I,  section  9,  clause  6  — 

Bridge  declared  by  Congress  to  be  a  lawful  structure 229 

Clause  quoted    6 

Limitation  on  federal  government 46 

Obstruction  of  one  of  two  channels 196 

Pilots   and   pilotage 212 

Article  I,  section  9,  clause  8  — 

As  affecting  regulation  of  rates 176 

Article  I,  section  10  — 

Prohibitions  or  limitations  on  State  power 7 


INDEX  347 

Article  I,  section  10,  clause  2—  PAGE 

Clause  quoted    6 

Harbor  dues   205 

Limitation  on  taxing  power  or  regulation  of  commerce 263 

Original  packages  of  dry  goods 122 

Power  in  Congress  to  declare  inspection  fees  excessive 106 

Recognition  of  State  inspection  laws 97 

Wharfage    206 

Article  I,  section  10,  clause  3  — 

Clause  quoted    6 

Limitation  on  taxing  power 269 

Article  III,  section  2,  clause  1  — 

Congress,  power  of,  to  define  admiralty  jurisdiction 31 

Congress,  power  of,  to  define  case  in  equity 26 

Territories  not  States 14  note 

Article  IV,  section  2,  clause  1  — 

Discrimination  by  taxation 316 

Foreign  corporations  not  citizens  in  several  States 248 

Article  IV,  section  3,  clause  2  — 

Clause  quoted    10 

Article  IV,  section  4  — 

Republican  form  of  government,  guaranty  of  to  States 25 

Asphalt  — 

Authorizing  particular  kind  for  municipal  improvement . . .  253 
Attachment  •— 

Of  loaded  freight  car 160 

Auctioneers  — 

License  tax  for  privilege  of  selling  goods 305 

License  tax  for  privilege  of  selling  imported  goods 309 

Between  places  in  same  State,  passing  outside  State  — 

See  Communication  Between  Places  in  Same  State; 
Tbanspobtation  Between  Plages  in  Same  Statu. 

Bills  of  exchange  — 

Stamp  tax  on 310  note 

Tax  for  privilege  of  dealing  in  foreign  bills  of  exchange 310 

Bills  of  lading  ~ 

Stamp  tax  on 291  note 

Bonds  — 

Taxation  by  State 276  note 

Booms  — 

States  may  authorize  construction  of 87,  198 

Tolls  for  floating  of  logs 202 


348  ufDEx 

Biran  —  page 

Original  packages  of 122  note 

Bridges  — 

Abatement  or  alteration  of  under  eminent  domain 67 

Concurrent  federal  and  State  action 229 

Construction    and    regulation    of,    under    the    State    police 

power  87 

Construction  may  be  authorized  by  Congress 227 

Declaring  structure  lawful  as  giving  preference  to  one  port.    178 

Lawful  or  unlawful,  power  of  Congress  to  declare 227 

Navigation,   as   impeding 228  note 

Opening  and  closing,  regulating  the 87 

Port  of  entry  above  bridge 229  note 

Preference  to  ports  of  one  State 229 

Relative  powers  of  Congress  and  States 224 

Removal,  power  of  Congress  to  require 228 

Removal,  requiring,  as  taking  of  private  property 228 

Taxation  of  corporate  franchise 312  note 

Taxation  of  property  of  bridge  company  erected  over  navi- 
gable  stream    281 

Tolls,  power  of  Congress  to  regulate 230 

Tolls,  power  of  States  to  regulate 231 

Wheeling  Bridge  Cases 224 

Batter  — 

Process  butter  to  be  marked  "  Renovated  Butter  " 139  note 

Canals  — 

Admiralty   jurisdiction    , 213 

Not  connected  with  navigable  waters,  power  of  State  over. .  212 
Power  of  Congress  to  construct 212 

Canvassers  — > 

See  Dbummebs  and  Canvassebs. 
Carriers-* 

See   ExPBESs   Companies;    Railroads;    Refbiqebatob 
Cab  Companies;   Ships  and  Shipping;  Sleepino 
Cab  Companies. 
Child  labor  — 

Power  of  Congress  to  regulate 117 

Cigarettes  — 

As  legitimate  articles  of  commerce 134 

Original  packages  of 123 

Prohibiting   sale   of 88 

Prohibiting  sales  in  original  packages 135 

Classifioation  of  national  and  State  powers  — 

Exclusive  and  concurrent  federal  and  State  powers. 55 


INDEX  349 

Clauses  — •  page 

Enumeration  of  5 

Coal  barge  cases  — 

See  Duration  of  Federal  Protection. 

G.  O.  D.  shipments  — 

Interstate  shipments  as  constituting  interstate  commerce..   129 
License  tax  on  merchants  in  other  States  shipping  goods 

C.   O.   D 308 

Not  affected  by  diverse  opinion  of  State  courts '  129 

CofPee  — 

Artificially  colored,  as  a  recognized  article  of  commerce ....    140 

iPower  of  States  to  prevent  fraud  or  deception 139 

States  prohibiting  importation  when  adulterated 83 

Collisions  — 

Rules  for  prevention  of,  to  be  observed 219 

Combination  of  competing  railroads  — 

States  may  prohibit 160 

Commerce  — 

See  Definition  of  Commerce. 

Common  law,  application  of  principles  of — 

See  Rules  of  Decision. 

Common  carriers,  principles  applicable  to 15 

Contract  exempting  carrier  from  liability  for  loss  by  negli- 
gence      16 

Copyright,  no  common  law 15 

No  national  common  law 15 

Offenses,  no  common  law 15 

Operative  on  interstate  transactions 19 

Rules  of  decision  in  absence  of  statutory  enactment 15 

Common  law  of  United  States  — 

See  Rules  of  Decision. 

Application  by  State  courts  in  interstate  transactions 18 

Discrimination   in   rates 18 

How  determined  in  general  courts  in  different  States 17 

Communication  betw^een  places  in  same  State  — 

Messages  passing  over  territory  of  another  State. 188 

Penalty  for  delay  in  message  passing  outside  State 192  note 

Concurrent  federal  and  State  powers  — 

Exclusive  and  concurrent  powers  stated 55 

Taxation    56 

Confederation,  tbe  — 

Confederation  of  sovereign  and  independent  States 4 

Conflicting  commercial  regulations  under 4 


350  INDEX 

Confederation,  the  —  Continued  —  PAOB 

Levy  duties  on  imports,  without  power  to 4 

Tax,  without  power  to 4 

Treaties,  power  of  making <  . . .  5 

Congress,  exclusive  poTver  of  — 

Classification  of  national  and  State  powers 55 

Interstate  communication  by  telegraph 188 

Naturalization    56 

Sale,  purchase,  and  exchange  of  commodities 59 

State's  power  as  to  local  matters 57 

Transportation  and  exchange  of  commodities 58 

When  power  is  exclusive 56 

Congress,  general  power  of  — 

See  under  different  subjects  of  regulation  and  generally 
throughout  this  index;  Eminent  Domain;  Manu- 
facture AND   PeODUCTION;    REGULATION   OF  RATES. 

Adoption  of  any  appropriate  means 46 

Coextensive  with  interstate  and  foreign  commerce 40 

Constitutional  limitation,  subject  to 44 

Corporations  or  individuals,  commerce  by 41 

Domestic  commerce  of  State  not  comprehended 40 

Injunction,    remedy   by 47 

May  authorize  construction  of  railroads 158 

Reaches  within  territorial  jurisdiction  of  States 40 

Resulting  in  preference  to  ports  of  one  State 176 

Rules  by  which  commerce  governed 42 

Transportation  of  persons  and  property 148 

Without  power  to  tax  exports  from  State .  > 45 

Connecting  carriers  — 

Requiring  carrier  to  furnish  evidence  of  loss 161 

States  may  require  facilities  for  interchange  of  traffic 161 

Construction  of  Constitution,  principles  of  — > 

Mischiefs  to  be  remedied 3 

Construction  of  railroads  — 
See  Police  Power. 

Construction  of  State  statutes  by  State  courts-- 

Construction  by  State  courts  generally  accepted 77 

Discriminative  feature,   to   avoid 253 

Federal  question  involved  in  construction 78 

Joint  through  rates 184  noto 

Prohibitory  law  limited  by  construction 120 

Rates  on  long  and  short  hauls 185 

Regulation  of  rates 183 

Separate-coach  laws   168 

Validity  as  construed  a  federal  question 78 


INDEX  351 

Contagions  diseases  —  page 

Preventing  spread  of,  by  the  States 83 

Contracts  limiting  liability  for  negligence  — 

Absence  of  statute 16 

Congress,  power  of,  to  make  provision 19 

Right  of  carrier  to  contract  for  exemption 17 

State,  power  of,  to  regulate 19 

State  statute  prohibiting *. 16 

Convict-made  goods  — 

Required  to  be  branded 254  note 

Credits  — 

Taxation  by  State 276  note 

Crime,  prevention  of  — 

State  police  power,  under 84 

Criminal  la^trs  •— 

Harboring  and  aiding  seamen  to  desert 223 

Navigation,  for  protection  of 215 

Piracies  and  felonies  committed  on  high  seas 47 

Power  of  Congress  to  regulate  commerce  by 47 

Criminals  — 

Exclusion  of,  by  States 241 

Dairy  products  — 

Making  importations  subject  to  State  laws 143 

Dams  — 

Condemnation  of,  by  federal  government 63 

States  may  authorize  construction  of 198 

Tolls  charged  for  improvements  by  erection  of 202 

Define  comnierce,  power  to  — 

See  Power  to  Define  Commerce. 

Definition  of  commerce  — • 

Attitude  of  federal  courts  to  State  legislation 38 

Communication  by  telegraph 188 

Inclusion  and  exclusion,  mainly  by  definitions  of 20 

Insurance,  power  of  Congress  to  declare  to  be  commerce ....  247 

Intercourse   21,  22 

Judicial  definitions 19 

Judicial  inquiry  not  excluded  by  federal  legislative  defini- 
tion       38 

Legislative  definition,  weight  given  to 39 

Loan  of  money 249  note 

Lottery  Case,  definitions  in 22 

Manufacture  and  production Ill 

Navigation    20 

Not  limited  to  traffic 21 


352  INDEX 

Definition  of  commerce  —  Continued.  PACES 

Power  of  Congress  to  define  commerce 36 

Press-dispatch  business 249  note 

Purchase  of  goods  upon  order  by  telegraph 120  note 

Purchase,  sale,  and  exchange  of  commodities 20 

Statutory  definition  by  inclusion  and  exclusion 36 

Term  "  commerce  "  without  juridical  significance 37 

Trade  marks    128 

Transportation  of  persons  and  property 20 

Ultimate  judicial   power  to   determine  relation  of   statute 

to  commerce   37 

Whether  limited  to  commercial  intercourse 22 

Whether  subject  of  legislation  has  relation  to  commerce.  . .     37 

Definition  of  substantive  grants  of  power  — 

See  Admibalty  Jubisdiction  ;    Jubisdiction   in   Law 
AND  Equity. 

Congress,  wide  powers  of  definition  possessed  by 36, .  37 

Guaranty  to  States  of  republican  form  of  government 25 

Of  jurisdiction  in  cases  "  in  law  and  equity  " 26 

Power  of  Congress  to  transfer  equitable  and  legal  causes. ,  .     31 

Power  of   legislative   department 24 

Under   taxation   clause 24 

Delivery  — 

Of  cars  beyond  right  of  way 172 

On  tender  of  freight  charges 173 

Deportation  of  aliens  — 

See  Aliens. 
Discrimination  in  rates  — 

See  Regulation  of  Rates. 

Contract  of  carrier  with  city 184  note 

Legislation  by  Congress 183  note 

Recognized  at  common  law 183  note 

Discriminative  State  statutes  — 

Action  of  State  officers  under  State  monopoly 254 

Construction  of  statute  to  avoid  discriminative  features . .  .   253 

Convict-made  goods  required  to  be  branded 254  note 

Discriminative   statutes    invalid 252 

Inspection  laws  — 

Animals  slaughtered  over  100  miles  from  place  of  sale.  258 

In  favor  of  enacting  and  an  adjoining  State 256  note 

No  discrimination  to  be  made 256 

Of  animals  to  be  slaughtered  for  food 257 

Pilotage,  exempting  certain  vessels  from  compulsory 259 

Specifying  particular  articles  for  municipal  improvement . .   253 
States  cannot  discriminate  against  goods  from  other  States.   167 


INDEX  353 

Discriminative  State  statutes  —  Oon*tnt«ed.  PACHi 

State  taxation  — 

Absence   of   discrimination 323 

Different  modes  of  collecting  tax 323 

Exempting    agents    selling    articles    manufactured    in 

State    317 

Exempting  goods  manufactured  in  State 320 

Exempting  sales  at  place  of  manufacture 321 

Exempting  sales  of  articles  produced  in  State 316 

Goods  imported  from  foreign  countries,  discrimination 

against    322,  324 

Method  of  taxation  giving  advantage  to  domestic  prod- 
ucts       319 

Privileges  and  immunities  of  citizens 316 

Wharfage  for  using  municipal  wharf 259 

Diseased  animals  — 

State  quarantine  regulations 104 

Diseased  persons  — 

Exclusion  of,  by  States 241 

District  of  Columbia  — 

Commerce  among  the  States,  relation  to 11 

Congress  possesses  powers  of  general  and  State  government 

over    13 

Congress,  power  of,  to  regulate  commerce  with 12 

General  power  of  Congress  over 10 

Legislative  assembly  possesses  municipal  powers  only 12 

Legislative  assembly  without  power  to  regulate  commerce 

with   States    12 

Municipal  powers  of 12 

Not  a  State  within  judicial  clause  of  Constitution 11 

State  as  word  is  used  in  treaties 12 

Docks  — 

See  Whaeves,  Piers,  and  Docks. 
Right  of  State  to  authorize  construction  in  domestic  waters .   198 
Dredges  — 

State  taxation  of 281 

Dmnimers  and  canvassers  — 

Absence  of  discrimination  in  privilege  taxes 323 

Difference  between  sales  of  goods  within  State  and  of  goods 

not  within  State 306 

License  to  sell  goods  not  within  State 304 

Mode  of  delivery  immaterial 304 

Dry  goods  — 

Original  packages  of 122 

23 


354  INDEX 

Duration  of  federal  protection  —  PAGir 

Breaking  up  or  sale  of  original  package 156 

Cars  waiting  for  train  to  be  made  up 155  note 

Ceases  when  goods  become  part  of  general  mass  of  property.   156 

Coal    barge    cases 156 

Commencement  of  final  movement 154 

Delivery  of  cars  to  consignee 155 

Entered  with  common  carrier 152  note 

Floating  logs    153 

Goods  intended  for  export 152 

Moving  goods  from  platform  to  freight  warehouse 155 

Property  actually  in  transit 152 

Sale  or  breaking  up  of  original  package 156 

State  taxation  — 

Coal  in  flat  boats,  arrival  of 291 

Goods  intended  for  export 291 

Logs  in  course  of  transportation 292  note 

On  arrival  of  goods  within  State 292 

Property  actually  in  transit 291 

While  being  carried  to  carrier's  depot 155 

While  in  possession  of  domestic  carrier 154 

While  temporarily  detained  in  transit 155 

JDnties  — 

Meaning  of   term 264 

Duty  of  tonnage  — 

Clause  imposing  prohibition  on  States  quoted 6 

Fees  charged  when  no  service  rendered 271 

Ferry  license   274 

Limitation  on  taxing  power 869 

Municipal    wharfage    273 

Quarantine   fee    275 

Taxation  apportioned  to  tonnage 271 

Taxation  of  vessels 279  note 

Taxation  of  vessels  as  property 270 

Tolls  for  using  improved  waters 274 

Wharfage    272 

What  constitutes    269 

XloTatora  — 

See  Wabehouses  and  Elevators. 

Embargoes  — 

Power  of  Congress  to  impose 196  note 

Jiatinent  domain  — 

See  Lands  Pubchased  fob  Federal  Purposb. 

Actual  occupancy  unnecessary 64 

Alteration  in  course  and  width  of  navigable  streams. .  .197  note 


INDEX  355 

Eminent  domaiti  •-•  Continued.  page 

Any  property  right  may  be  taken 63 

Aqueduct    to    Washington    and    Georgetown,    construction 

of    60  note 

Artificial  highways  may  be  taken 60 

Benefit,  including  general  or  special 72 

Bridge,  abatement  or  alteration  of 67 

Consequential  and  incidental  injury  not  taking 64 

Depriving  riparian  owner  of  use  of  stream 63  note 

Distinction  between  damage  and  taking 64 

Due  process  of  law 71 

Establishing  telegraph  upon  railroad  right  of  way 63  note 

How  property  taken 60 

Including  general  or  special  benefit 72 

Jurisdiction  — 

Any  competent  tribunal 69 

Of  commissioners    71 

Of  Court  of  Claims 70 

Of  State  tribunals 70 

Of  United  States  Circuit  Courts 69 

Jury  trial,  right  to 70 

"  Just  compensation  "  to  be  full  equivalent 72 

Land  actually  invaded  to  be  considered  as  property  taken . .  64 

Limitation  of  Fifth  Amendment 45, '  62 

Lock  and  dam,  condemnation  of 63 

Means  for  carrying  out  any  federal  purpose 59 

Measure  of  compensation 72 

Measure  of  compensation  a  judicial  question 68 

Municipal  easements  as  property  rights 63 

Not  a  substantive  power 59 

Payment,  provision  for,  as  condition  of  actual  condemnation.     73 

Payment,  time  of,  or  provision  for 73 

Permanent  flooding  of  private  property 65 

Permanent  holding  of  land  constitutes  taking 64 

Property  designated  by  executive  officer 60 

Riparian  right  of  access 66 

State's   consent   unnecessary 60 

State's  general  authority  to  exercise  power  of 59 

Submerged  soil  not  private  property 63 

Territories,  in  60  note 

Title,  passing  of 61 

Tolls,  right  to  take,  in  estimating  value  of  property 63 

Engineers  — 

Of  vessels,  rules  for  qualification  and  licensing  of 219 

Requiring  examination  of  railroad  engineers 164 

Evidence  — 

State  rule  of,  as  affecting  liability  of  connecting  carriers . .  93 


356  INDEX 

Examination  of  railroad  employees—  9^0! 

See  PowcE  PowEE. 

Exchange  — 

Business  carried  on  by  members  of  live-stock  exchange ....  141 
License  tax  on  exchange  brokers 310 

Exchange  of  commodities  — 

See  Sale,  Purchase,  and  Exchange  of  Commodities. 

Exclusion  of  aliens  — 

See  Aliens. 

Exclusion  of  particular  persons  by  the  States  — 

Crime  and  pauperism,  for  prevention  of 84 

Exclusive  navigation,  grant  of — 

Of  domestic  improved  waters 200 

To  navigate  interstate  route 199 

Exdusiveness  of  pourer  of  Congress  — 

See  CoNGBESS,  Exclusive  Poweb  of. 
Exports  •— 

See  Imports  and  Exports. 
Congress  without  power  to  tax • ,      6 

Express  companies  — 

State  regulation  of  transportation  charges 179  note 

State  taxation  — 

Application  of  unit  rule 282 

Gross  receipts,  see  Gross  Receipts,  Taxation  of. 

On  agency  maintained  within  State 298 

On  privilege  of  doing  local  business 296 

Unit  rule,  mode  of  ascertaining  value 283 

Unit  rule,  valuation  as  unit  defined 285 

Federal  places  — 

Local  federal  police  regulation  applicable  to 119 

Federal  police  power  — 

See  Police  Power;  Prohibit,  Powkb  of  Congress  to. 
Ferries  — 

Definition  of,  in  strict  sense 209 

License  fee  as  duty  of  tonnage 274 

Licensing  of,  by  State 297 

State's  authority  to  regulate  over  domestic  waters 207 

State  taxation  of  business  of  landing  and  receiving  passen- 
gers and  freight 208 

Subject  to  federal  licensing  laws 215 

Transfer  companies  transporting  railroad  cars 208 

Within  scope  of  admiralty  jurisdiction 209  note 


INDEX  357 

Fifth  Amendment—  PAOi: 

See  Eminent  Domain. 
Aliens,    application    to 240 

As  limitation  on  power  of  Congress  to  prohibit 53 

Bridges,  requiring  removal   of 228 

Limitation  on  power  of  eminent  domain 45,     62 

Fire  — 

Precautions  against,  on  vessels 220 

Fish  laws  — 

See  Game  Laws. 

Establishing   close   season 236  note 

License  tax  for  privilege  of  fishing 294  note 

Licciioc  tax  Oil  business  of  canniug  or  packing  cystors .  .  294  note 

Menhaden  fish 236 

Oyster  culture,  State  protection  of 237 

Oysters,  discrimination  in  favor  of  citizens  in  planting  or 

taking    252  note 

Oysters,     prohibiting     taking     with     destructive     instru- 
ments    237  note 

Possession  during  close  season  prohibited 236  note 

State  protection  of  fisheries 235 

Swimming  fish    236 

Flour  — 

Original    packages   of 122  note 

Foods  — 

Coffee,  preventing  deception  in  sale  of 139 

Inspection  laws   99 

Newly  discovered  article  of 136 

Power  of  Congress  to  insure  purity 115 

Power  of  State  to  prevent  sale  of  adulterated 83,  135 

Foreign  corporations  — 

Engaged  in  furnishing  and  adjusting  machinery 249  note 

Engaged  in  interstate  commerce.  State  cannot  exclude 249 

Engaged  in  manufacture,  compliance  with  State  law 112 

Engaged  in  press-dispateh  business 249  note 

Execution  of  canvasser's  bond 249  note 

Franchise  tax  on 313 

In  employ  of  federal  government.  States  cannot  exclude .  . .   250 

Interstate,  subject  to  State  police  power 25 1 

Interstate,  to  comply  with  local  regulation 250 

License  tax  for  privilege  of  keeping  office  in  State 298 

Loan  of  money 249  note 

Organized  by  Congress,  States  cannot  exclude 250 

Power  of  States  to  exclude  or  admit  on  conditions 248 

Tax  for  privilege  of  carrying  on  business  within  State 309 


358  INDEX 

Fovrteenth  Amendment  —  page 

Separate-coach    law    169 

State  eminent  domain  power,  limitation  on 63  note 

State  regulation  of  insurance  as  exercise  of  police  power . .  246 

Franchise  tax  — 

Of  domestic  corporations 312 

Of  foreign  corporations 313 

On  business  of  dealing  in  imported  goods 313 

On  capital   stock 313  note 

Payment  as  condition  to  doing  business  in  State 314 

Free  conipetition,  rule  of — 

See  Anti-Tbust  Law. 
Power  of  Congress  to  declare 42 

Freight  cars  — 

Attachment  of,  when  loaded  with  interstate  freight 160 

Requiring  railroads  to  furnish 160 

Ganie  laws  — 

See  Fish  Laws. 

•Common  ownership  of  game 234 

Establishing  close  season  for  game 233 

Exportation  of  game  prohibited 235  note 

Federal    statutes   subjecting   game   to   operation   of    State 

laws   235  note 

Importation  of  game  prohibited 235  note 

Possession  during  close  season  prohibited 235  note 

Gangers  of  coal  boats  — 

Appointment  under  State  inspection  laws 99 

Grants  of  po-nrer  — 

See  Definition  of  Substantive  Grants  of  Power. 

Gross  receipts,  taxation  of — 

From  interstate  and  foreign  commerce 287 

From  intrastate  commerce 287 

Separability  of  intrastate  from  interstate  tax 289 

Stipulation  in  charter  for  tax  on  receipts 289 

Harbor  lines  — 

See  Habbob  Regulations. 
Harbor  regulations  — 

Display  of  lights 204 

Dues  sufficient  to  meet  expenses 205 

Fees  charged  when  no  services  rendered  as  duty  of  tonnage.  272 
Harbor  lines  — 

Authority  of  State  to  e><tablish 203 

Power  of  Congress  to  establish 203 


INDEX  359 

Harbor  resnlationji  —  Continued.  PACn 

Regulating  place  of  anchorage 204  note 

State  regulations  respecting  vessels 203 

Survey  of  hatches 204 

Hatches,  survey  of  — 

As  harbor   regulation 204 

Hiring  laborers  to  be  employed  outside  State  — 

Privilege  tax  on  business  of 811 

Immigraiits  — 

State  tax  on 297  note 

Imports  and  exports  — 

Absence  of  discrimination 324 

Clause  imposing  prohibition  on  States  quoted 6 

Congress  without  power  to  tax  exports 45 

Franchise  tax  on  business  of  dealing  in  imported  goods. .  . .   313 

Harbor    dues    205 

Inspection    laws    97 

License  tax  on  privilege  of  selling  goods  imported 309 

Limitation  on  taxing  power  or  regulation  of  commerce. . . .  263 

Meaning   of   term 264 

Pilots  and  pilotage 212  note 

Refer  to  property  and  not  to  persons 267 

Stamp  tax  on  bills  of  lading 291  note 

Taxation  on  becoming  incorporated  with  mass  of  property . .  292 
Tax  for  privilege  of  dealing  in  foreign  bills  of  exchange. .  . .  310 
Wharfage  not  a  duty  on 206 

Imposts  — 

Meaning  of  term 264 

Indian  tribes,  regulation  of  commerce  uritb  — 

Cherokees  in  North  Carolina 10 

Clause    quoted 5 

EflFect  of  abandonment  of  tribal  relations 8 

Emancipation  from  federal  control 8 

Federal  control  before  emancipation 9 

Ownership  and  distribution  of  property,  regulation  of 9 

Separate  nations,  originally  treated  as 7 

Subject  to  direct  federal  legislation 8 

Injunction  — 

Power  of  Congress  to  regulate  by 47 

Prohibiting   business    of   telegraph    company    until    tax    is 

paid    279   note 

Inspection  and  licensing  of  vessels  — 

Confers  no  immunity  from  operation  of  State  laws 217 

Congress,  power  of,  to  provide  for 215^ 


360  INDEX 

iBspection  and  licensing  of  -vesmeln '-Continued.  page 

Lighters  and  tug  boats 216 

Of  ferries 215 

Of  vessels  plying  between  places  in  same  State 216 

Payment  of  tolls  for  use  of  improved  waterways 213 

Inspection  and  quarantine  laws  — 

Charges  and  fees  — 

Power  of  courts  or  Congress  to  declare  excessive 106 

Sufficient  to  pay  costs  and  expenses 105 

Imports   and   exports 97 

Inspection  — 

Absolute  prohibition  not  permitted 99 

Appointment  of  gangers  of  coal  boats 99 

Before  subject  becomes  an  article  of  commerce 98 

Discrimination,  absence  of 101 

Discrimination,    animals    slaughtered    over    100    miles 

from  place  of  sale 258 

Discrimination  in  favor  of  enacting  and  an  adjoining 

State   ' 256  note 

Discrimination,  no,  to  be  made 256 

Discrimination  in  slaughtering  of  animals  for  food ....  257 

Elements  of  inspection  laws 98 

Finding  of  fact  by  administrative  officer 101 

Must  be  appropriate  and  reasonable 99 

No  operation  in  advance  of  importation 100 

On  commerce  between  the  States 98 

Reasonable    and    appropriate 83 

Requiring  goods  to  enter  State  warehouse 99 

Rule  to  determine  capacity  of  vessels 100 

To  insure  fitness  of  article  for  use 98 

Quarantine  and  health  — 

•.                                     Against  animals  exposed  to  disease 104 

Against  diseased  animals 104 

Congressional   recognition  of  State  laws 102 

{                                      Disinfecting  rags   103  note 

Duty  of  tonnage,  quarantine  fee  as 275 

i                                      Excluding  healthy  persons  from  infected  locality 103 

]                                    Limited  by  necessities  of  the  case 103 

Reasonableness     104 

Taxes  upon  alien  passengers 101 

i.                           Judicial  declaration  that  insurance  is  not  commerce 245 

I                            License  tax  on  agents  and  brokers 311 

J                             Power  of  Congress  to  declare  insurance  commerce. 247 

t       .                     State  regulation  as  exercise  of  police  power 246 


INDEX  361 


Intoxicating  liqnors  — 

See  Wilson  Act. 

Inspection  law,  effect  of  Wilson  Act 146 

Original  packages  of 123 

Prohibiting  sale  of  imported  liquors 132 

Prohibiting  transportation  by  States 132 

Right  to  import  for  individual  consumption  notwithstand* 

ing    Wilson    Act 148 

States,  power  of  — 

Prohibiting  sale  of  imported  liquors 132 

States  without  authority  to  prohibit  importation. . . . ., 131 

Joint  tlirougli  rates  — 

See  Fegulatton  of  Bates. 
Jurisdiction  — 

See  Admiealty  Jurisdiction;   Jubisdioiion  nf  Law 
AND  Equity. 
Jurisdiction  in  law  and  equity  — 

Effect  of  §  914,  U.  S.  Rev.  Stat 26 

Necessity  for  federal  statutory  provisions 27 

Power  of  Congress  to  define 26 

Power  of  Congress  to  transfer  causes 31 

Power  of  territorial  legislature  to  ignore  distinction 28 

Preservation  of  right  of  trial  by  jury 30 

Providing  new  forms  of  remedies 30 

State  statutes  blending  legal  and  equitable  remedy 26 

Jury  — 

See  Teial  by  Jury. 
Lands  purchased  for  federal  pu^^ose** 
See  Eminent  Domain. 
Exclusive  jurisdiction  acquired  by  State's  consent,  how. ...     61 
Laundry  business  — 

License  tax  on 294  note 

I^aur  and  equity  — 

See  JuEiSDicTiON  IN  Law  and  Equett. 
I<egacies  — 

Taxation  by  State 276  note 

Liability  — 

See  Contracts  Limiting  Liability  foe  Nkgliqence; 
Limitation  of  Vessel  Owners'  Liabilitt;  Rules 
OF  Liability. 
Liens  — 

On  vessels,  for  supplies  or  labor ^21 

Idghters  — 

Inspection  and  licensing  of 216 


362  INDEX 

Xiimitation  of  vessel  owners*  liability—  PAai 

Navigating  high  seas  between  points  in  same  State 149 

Power  of  Congress  to  legislate  on 220 

Idmitations  and  prohibitions  of  Constitution  — 

Aliens,  rights  of,  under 240 

Commerce  clause  as  limitation  on  powers  of  States 38 

Judicial  power  to  define  terms  used 37 

National  government,  upon 7 

Power  of  Congress  subject  to 44 

Power  of  judicial  department  to  define 24 

Power  of  judiciary  to  define  "  direct "  taxes 24 

Regulation   of   rates 176 

Seamen,  when  not  applicable  to 222 

States,   upon    7 

Idmiting  liability  for  negligence- 

See  CoNTBACTS  Limiting  Liability  fob  Negligence. 
Iiive  stock  — 

Transportation  from  one  State  to  another 149 

Loan  of  money  — 

As  commerce  249  note 

Locks  — 

States  may  authorize  construction  of 198 

Logs  — 

Fees  for  inspecting  and  scaling  logs 202 

Intended  for  export,  State  taxation  of 292  note 

Toll  for  floating  as  county  charge 203  note 

Tolls  charged  for  improvements  by  erection  of 202 

Tolls  for  use  of  boom 202 

Lotteries  — 

Foreign    government    bonds    coupled    with    lottery    condi- 
tions   245  note 

Lottery  tickets  declared  subjects  of  commerce  by  Congress. .  243 

Prohibiting  transportation  of  lottery  tickets 244 

Prohibition  of,  by  Congress 50 

State  laws  respecting  lotteries 245 

States  prohibiting  sale  of  tickets 84 

Manufacture  and  production  — 

Commerce  succeeds   to Ill 

Congress,  power  of  — 

By  indirection    115 

Child  labor    117 

Denial  of  interstate  transportation  facilities 115 

Extent  of  power  suggested 116 

Power  to  control  process  of  manufacture  limited 117 


INDEX  363 

Manikfaetiire  and  proAnetion -^  Contimted.  PACK 

Congress,  power  of  — Continued. 

Prohibiting  combination  of  manufacturers  to  monopo- 
lize manufacture    113 

Prohibiting  combinations  to  restrain  sales  of  products. .    113 

Proposition  stated  in  Northern  Securities  case 115 

Regulations  to  serve  distinctively  federal  purpose 117 

Distinction  between  manufacture  and  domestic  sales  and  in- 
terstate commerce    114 

Proposition  stated  in  Northern  Securities  case  respecting 

manufacture    115 

States,  power  of  — 

Exclusive  control  of Ill 

Foreign    manufacturing    corporation    to    comply    with 

State  law   Ill 

Prohibiting  manufacture  for  export Ill 

Meal- 

Original  packages  of 122  note 

Meat  — 

Inspection  charges    105 

Merchandise  brokers  — 

License   tax  on 304 

Merehants  — 

Difference  between  sales  of  goods  within  State  and  of  goods 

not  within  State 306 

License  tax  for  privilege  of  selling  goods 305 

License  tax  on  merchants  in  other  States  shipping  goods 

C.   0.   D 308 

Migration  and  importation  — 

Clause  quoted    6 

Exclusive  reference  to  persons  of  African  race 267 

Natural  gas  -^ 

Prohibiting  transportation  of ; 148  note 

Prohibiting  use  of  pressure  in  transportation 148  note 

Navigation  — 

As  element  of  commerce 20 

Navigation  and  navigable  xeaters  — 

See  Bridges  ;  Canals  ;  Ferries  ;  Habbob  Regulations  ; 
Pilots  and  Pilotage;  Seamen;  Ships  and  Ship- 
ping;  Wharves,  Piers,  and  Docks. 

Between  points  in  same  State  on  high  seas 149 

Booms,  State  authorizing  erection  of 87 

Bridges,  as  impeding 228  note 

Compact  between  States  sanctioned  by  Congress 196  note 


364  INDEX 

NaTigation  and  navisable  vrakteru  <^  Oontimied.  PAGE 

Congress,  power  of  — 

Affirmative  exercise  of  power 196 

Alterations      in      course      and     width     of     navigable 

streams  197  note 

California  D6bris  Commission  Act 197  note 

Control  necessary  to  insure  free  navigation 195 

Embargoes    196  note 

Exclusion    of    State    authority    over    domestic    waters 

not  implied   198 

Incidental  power  to  regulate  commerce 195 

Line  of  navigability  for  erection  of  wharves 206 

Obstruction  of  one  of  two  channels 196 

Improvements,  tolls  for  use  of 5i02 

Individual  ownership  of  shore  and  submerged  soil 201 

**  Navigable  waters  of  United  States,"  what  are 194 

Not  limited  to  tidal  waters 194 

Obstruction  of  one  of  two  channels 178 

On  high  seas  between  points  in  same  State . . .' 149 

Payment  of  tolls  for  improved  waterways  by  vessels  holding 

federal    license    213 

Piers,  State  authorizing  erection  of 87 

States,  power  of  — 

Construction  of  locks,  dams,  and  booms 198 

Deepening  channels   197 

Establishing  lines  of  navigation 198 

Exclusive    navigation    of    domestic    improved    waters, 

grant  of    200 

Exclusive  navigation  of  interstate  route,  grant  of 199 

Over  domestic  waters,  not  excluded  by  action  of  Con- 
gress  by   implication 198 

Regulating  waters  within  State  limits 197 

Removal   of   obstruction 197 

Rights  of  new  States 200 

Subject  to  paramount  authority  of  CoAgress 197 

To  reclaim  streams  and  overflowed  lands 195 

When  remotely  connected  with  other  means  of  trans- 
portation  ". 199 

Streams  declared  navigable  by  State  statutes 195  note 

Tolls  for  river  improvements 202 

Tolls  for  using  improved  waters  as  duty  of  tonnage 274 

When  navigable  in  fact 194 

HeKligenoe  — 

See  CoNTEACTs  Limiting  Liabilttt  for  Negligence. 
Hew  States  —> 

Rights  possessed  by  original  States 200 


INDEX  365 

Ooenpation  taxes  •—  '  PAAI 

See  Privilege  Tax. 
Oils  — 

Federal  regulations  respecting  mixing 119 

Oleomargarine  — 

Recognized  article  of  commerce 136 

States  may  prohibit  imitation  of  butter 83 

States  regulating  or  prohibiting  sale  of  — 

Excluding  when  artificially  colored 137 

Prohibiting  sale  of 135 

Requiring  it  to  be  colored  pink 137 

When  colored  in  imitation  of  butter 138 

Operation  of  railroads  — 
See  Police  Power. 
Original  packages  — 

Cigarettes     123 

Good  faith  in  use  of 125 

Goods  in  packages  too  small  to  be  considered  as 89 

Intoxicating   liquors    123 

Judicial  dissent  from  doctrine 125 

Motive   of    shipper 124,  125 

Of   dry  goods 122 

Of  oleomargarine    124 

Right  to  sell  goods  through  agent 121 

Sacks  of  flour,  bran,  or  meal 122  note 

Size  does  not  govern 122 

Size   is   material 125 

Size,  materiality  of,  as  to  articles  within  scope  of  police 

power     126 

Size  of  package  in  which  liona  fide  transactions  are  carried 

out 132 

Some    suggestive    rules 127 

Source  of  doctrine 121 

Transaction  incomplete  unless  goods  sampled 120  note 

What  constitute    121-127 

When  sold  or  broken  up,  goods  amenable  to  State  law 156 

Oysters  — 

See  Fish  Laws. 

Packing  houses  — 

Not  engaged  in  interstate  commeree Ill  note 

Passengers  — 

Head  money  tax  impoeed  by  Congress 239 

Limiting  number  of,  oh  vessels 220 

State  capitation  tax  upon 267   note 

State  quarantine  laws 101 


366  INDEX 

Patents  —  PAGB 

Use  by  foreign  vessels  of  patented  articles 214 

Pauperism,  prevention  of — 

State  police  power,  under 34 

Peace,  good  order,  and  pnblic  morals  — 

See  Police  Power. 
Peddlers  — 

Difference  between  sales  of  goods  within  State  and  of  goods 

not  within   State 306 

License  tax  for  privilege  of  selling  goods 305 

Prohibiting  peddling  goods  from  other  States 252  note 

State  prohibition    120  note 

Tax  discrimination  in  favor  of  articles  produced  in  United 

States    319    note 

Piers  - 

See  Wharves,  Piers,  and  Docks. 

State  authorizing  erection  of 87 

Pilots  and  pilotage  — 

Compensation   of   pilots 210 

Discriminating  State  provisions,  eliminating  by  construction.  253 
Discrimination    by    exempting    certain    vessels    from    com- 
pulsory pilotage    259 

Federal  recognition  of  State  laws 209 

Federal   statutes    paramount 210 

Half-pilotage  on  tender  of  services 211 

Preference  to  ports  of  one  State 212 

Rules  for  qualification  and  licensing  of  pilots 219 

State's  power  to  regulate 209 

Plants  — 

Exempting  from  conditions  of  sale  when  grown  in  State .  253  note 
Police  power  — 

See  different  subjects  of  regulation  generally;  Inspec- 
tion AND  Quarantine  Laws. 

Exclusiveness  of  State  police  power 51 

Federal  police  power  — 

See  Prohibit,  Power  of  Congress  to. 

Coincidence  of  federal  and  State  powers 53 

Local  regulations  applicable  only  to  federal  places. ...    119 

Power  of  Congress  to  prohibit,  as  exertion  of 51 

Municipal   police  regulations 80 

State  police  power  — 

Absolute  requirements    96 

Adulteration  of  foods,  preventing 83 

Aid  to  commerce 93 

As  reserve  sovereign  power 81 


INDEX  367 

Police  power —>  Continued.  PAoa 

State  police  power  —  Continued. 

Booms,  authorizing  erection  of 87 

Bridges,   regulating  construction  of 85,  87 

Bridges,  regulating  opening  and  closing  of 87 

Cannot  divest  itself  of  the  power 82 

Coffee,  prohibiting  importation  of  adulterated 83 

Conflict  with  Acts  of  Congress  positive 91 

Construction  of  railway  bridges  and  trestles 85 

Contagious  diseases,  preventing  spread  of 83 

Convenience,  public   .• 86 

Crime,  prevention  of 84 

Direct  conflict  with  Acts  of  Congress 90 

Examination  of  railroad  employees 85 

Exclusion  of  criminals  and  poor  and  diseased  persons. .  241 

Exclusion  of  particular  persons 84 

Exclusive  jurisdiction  of  Congress,  direct  interference 

with   87 

Federal  policy,  on  furtherance  of 94 

Foods,  preventing  adulteration  of 83 

Freight  trains,  prohibiting  running  on  Sunday 85 

General  scope   82 

Good  faith,  presumption  of 97 

Health,  public 83 

Heating  passenger  cars,  mode  of 85 

How  understood  in  constitutional  sense 80 

Inconveniences  resulting  from  exercise  of 85 

Indirect  interference  with  commerce 91 

Instances  of  incidental  interference 92 

Instrumentalities  of  commerce 90 

Limited  by  absolute  necessity,  when 83 

Lottery  tickets,  prohibiting  sale 84 

Morals,  public   84 

Object,  statute  must  have  real  relation  to 95 

Oleomargarine,  prohibiting  in  imitation  of  butter 83 

Original  packages,  materiality  of  size  of 126 

Pauperism,   prevention   of 84 

Piers,  authorizing  erection  of 87 

Poles  and  wires,  regulating  erection  of 87 

Power  to  regulate  as  well  as  prohibit 82 

Presumption  of  good  faith 97 

Prohibiting  sale  of  cigarettes 88 

Prohibition  of  or  burden  on  commerce 88 

Railroad   rates,   requiring  rates  to  be  fixed  annually 

and   posted    86 

Railways,  construction  and  operation  of 85 


368  INDEX 

Police  povrer  —  Continued. 

State  police  power  —  Continued. 

Rates  of  railroad  within  State  limits 92 

Reasonableness  as  the  supreme  test 94-97 

Reasonable  regulations  not  affected  by  possible  incon- 
veniences      85 

Remote  interference  with  commerce 91 

Rule  of   evidence 93 

Rule   of  liability 93 

Rule  of  liability  for  torts 93 

Safety,  public    85 

Separate-coach  law   169 

Social  evils,  measures  against 84 

Stoppage  of  trains  at  certain  stations 95 

Sunday  laws 84 

Sunday  laws  incidentally  interfering  with  commerce . .  93 

Supply  cars,  requiring  railroads  to 95 

Telegraph   messages,   regulating  transmission  and  de- 
livery      87 

Track  connections,  enforcing 94 

Trains,  regulating  stoppage  of 86 

Trains,  speed  of 92 

Unadulterated  articles,  absolute  prohibition  of 83 

Validity  determined  by  natural  effect 97 

Poor  persons  — 

Exclusion  of,  by  States 241 

Requiring  railroads  to  return  any  who  should  beccmae  desti- 
tute      243 

Port  charges  — 

Sufficient  to  meet  expenses 205 

Port  of  entry  — 

Bridge  below,  authorized  by  State 229 

Posting  rates  — 

Required  by  Interstate  Commerce  Act  of  1887 187  note 

States  requiring  railroads  to  post  rates 186 

Pomrer  to  define  commeroe  — 

Definition  necessarily  inclusive  and  exclusive 23 

Proposition  stated 23 

Relative  authority  of  Congress  and  courts 23 

Preference  to  ports  of  one  State  — 

By  declaring  bridge  to  be  lawful  structure 178,  229 

Clause  quoted 6 

IncideBtal  prefereiK^e  not  intended 177 

Obstruction  of  one  of  two  channels 178,  196 

Pilots  and  pilotage 212 


INDEX  369 

Pvef  ereace  to  ports  of  ome  State  —  Continued.  JfAsm 

Preference  as  between  States  and  not  between  ports 177 

Regulation    of    rates 176 

Restriction  upon  federal  government 46 

Press-dispatch  business  — 

Not  interstate  commerce 249  note 

Private  siding  — 

Requiring  delivery  of  freight  to 172 

Privileges  and  immunities  of  citizeni — 

Discrimination  by  taxation 316 

Foreign  corporations  not  citizens  in  several  States 248 

Privilege  tax— ^ 

Construction  of  statute  limiting  tax  to  domestic  business . .  299 

On  brokers  dealing  in  foreign  bills  of  exchange 310 

On  business  of  canning  oysters 294  note 

On  commission  merchants 305  note 

On  drunmiers  and  canvassers 304 

On   ferry   keepers 297 

On  fishing  in  State  waters 294  note 

On  foreign  corporations 309 

On  hiring  laborers  to  be  employed  outside  State 311 

On  insurance  agents  and  brokers 311 

On  keeping  office  for  transaction  of  interstate  business ....  298 

On  laundry  business 294  note 

On  maintaining  agency  to  facilitate  interstate  business 298 

On  merchandise  brokers 304 

On  merchants,  peddlers,  and  auctioneers 305 

On  owners  of  grain  elevators  and  warehouses 310 

On  privilege  of  doing  local  business 295 

On  separate  local  independent  service 295 

On  telegraph  companies  for  privilege  of  doing  domestic  busi- 
ness   301 

On  telegraph  companies  for  use  of  streets 101 

On  telegraph  company  as  condition  to  doing  business  in 

State    300 

On  transportation  of  persons  and  property 294 

On    vessel    owners 206 

Prod-uetion  — 

See  Manufactube  and  Pboduction. 

Prohibitions  and  limitations  of  Constitution  — 

Aliens,   rights   of,    under 240 

Judicial  power  to  define  terms  used 37 

National    government,    upon : 7 

Power  of  Congress  subject  to 44 

Power  of  judicial  department  to  define 24 

24 


370  INDEX 

ProUbitioAi  Amd  limltotiona  of  CoBititution  —  Con.       page 

Power  of  judiciary  to  define  "  direct "  taxes 24 

Regulation  of  rates 176 

Seamen,  when  not  applicable  to 222 

States,  upon    7 

Prohibit,  power  of  Congress  to  — 
See  Regulation  of  Commebce. 

Absolute  power  not  possessed 52 

As  plenary  sovereign  power 40 

Coincidence  of  federal  and  State  police  powers 53 

Combined  federal  and  State  powers,  exercise  of 54 

Food  laws  as  illustrating 54 

Introduction  of  goods  from  foreign  countries 49 

Lottery  tickets    50 

Police  power  as  exertion  of 51 

Property  rights,  denial  of 53 

Subject  to  constitutional  limitations 49,     51 

Wilson  Act  as  illustration  of  modified  prohibition 50 

Property  actually  in  transit  — 

Taxation  by  State  of 291 

Property  used  in  interstate  and  foreign  commerce  — • 

General  power  of  State  to  tax 276 

Value  resulting  from  use  in  commerce 277 

Public  conTcnienee  — 

See  Police  Poweb. 
PnbUc  bealtb  — 

See  Police  Poweb. 
Public  safety  — 

See  Police  Poweb. 
Pnrebase  of  oonunodities  — 

See  Sale,  Pubchase,  and  Exchange  of  ComcoDiTiES. 
iQn*rantine  laws  — 

See  Inspection  and  Quabantine  Laws. 
Jiags  — 

Disinfecting    103  note 

Mailroads  — 

See  Connecting  Cabbiebs;   Police  Poweb;   Regula* 
TioN  OP  Rates;  Tbains. 
Congress,  power  of  — 

Construction  of  railroads  may  be  authorized 158 

Employment  of  several  agents  in  transportation. .  .159  note 

May  make  grants  for  rights  of  way 158 

Over  railroad  wholly  intrastate 158 

Paramount,  when  engaged  in  interstate  commerce....   158 
Railroad  existing  under  laws  of  two  States 159  note 


INDBX  371 

Railroads  —  Continued.  paob 

Foreign  corporations  to  comply  with  local  regulations 260 

Foreign  corporations  subject  to  State  police  power 251 

Several  agencies  employed  in  interstate  transportation.  .159  note 
States,  power  of  — 

Attachment  of  loaded  freight  car,  authorizing 160 

Authorizing  consolidation  in  adjoining  States 161 

Connecting  carriers,  regulating 161 

Connecting  carriers,  tracing  freight  and  evidence  of  loss.  161 
Construction  and  operation,  see  Police  Power. 

Crossings,  lighting  of 163 

Delivery  of  cars  beyond  right  of  way 172 

Delivery  of  goods  on  tender  of  freight  charges 173 

Employees,  examination  of 164 

Engineers,  requiring  examination  of 164 

Equal  accommodations  to  be  given  interstate  passengers.  167 
Failure  to  ship  freight  within  prescribed  time,  penalty 

for 159 

Freight  cars,  requiring  furnishing  of 160 

Freight,  prohibiting  transportation  on  Sunday 171 

Heating  of  passenger  cars 85,  165 

Prohibiting  consolidation  of  competing  roads 160 

Races,  accommodations  for  different 167 

Refusal  of  railroad  to  receive  freight  for  transporta- 
tion,  penalty   for 159 

Requiring  facilities  for  interchange  of  traffic 161 

Requiring  fast  train  to  turn  aside  from  direct  route..   165 
Requiring  freight  to  be  shipped  over  route  designated 

by  shipper    160 

Requiring  payment  or  refusal  to  pay  claim  within  cer- 
tain time   160 

Requiring  rates  to  be  fixed  annually  and  posted 186 

Rules  for  safety  of  persons  and  property 94 

Separate-coach    law 167 

Speed  of  trains,  regulating 163 

Stop-over  privileges   172 

Stoppage  of  trains  at  county  seats 166 

Stoppage  of  trains  at  towns  over  certain  size 166 

Stoppage  of  trains,  regulating 165 

Subordinate   power   to   regulate,   as   instrumentalities 

of  commerce 159 

Sunday  laws   171 

Supply  cars,  requiring  railroads  to 95,  160 

Ticket  scalping  or  brokerage,  prohibiting 171 

Tickets,  regulating  sale  of 171 

Track  connections,  enforcing 94 

Trains,  posting  time  of  arrival  of 163 

Trains,  regulating  operation  of 163 


372  iNOBx 

Rcfiroads  —  Continued. 
State  taxation  — 

Application  of  unit  rule 282 

Franchifie  tax  on  separate  local  independent  service . .  295 
Gross  receipts,  see  Gross  Receipts,  Taxation  of. 

Of  corporate  franchise 312 

Of  rolling  stock  and  other  movable  property 277 

Of  tolls  received  for  use  of  road 277 

On  privilege  of  keeping  office  in  State 298 

Privilege  and  occupation  taxes 294 

Unit    rule,    exceptional    cases    of    valuable    terminal 

facilities    286 

Unit  rule,  mode  of  ascertaining  value 282 

Bates  — 

See  Regulation  of  Rates. 

KeasoB  for  adoption  of  Constitution  — 

Uniform  system  of  regulating  commerce,  need  for 3 

Beeording  acts  — 

Federal    recording    acts 217 

State  registration   laws 218 

BcCfrigerator  car  companies  — 

Taxation  of  rolling  atock  and  other  movable  property 277 

Registration  laws  — 

See  Recording  Acts. 

Begnlation  of  commerce  — 

By  any  appropriate  means 46 

Classification  as  to  federal  and  State  powers 56 

Constitutional  prohibitions  or  limitations,  power  limited  by.  37 

Corporations,  by  creation  or  use  of 46 

Criminal  laws,  by  enactment  of 47 

Injunction,  remedy  by 47 

What  constitutes  power  to  regulate 48 

Xtegnlation  of  rates  — 

Congress,  power  of  — 

Legislation  respecting  discnrnination 183  note 

Power   respecting  commerce   between   States   same   as 

that  of  States  respecting  local  traffic 176 

Prohibiting  combinations  to  control  rates 174 

To  directly  control  rates 175 

Within  constitutional  restrictions 176 

Discrimination  in  use  of  commutation  tickets .252  note 

Incidental  preference  to  ports  of  one  State 177 

Itequiring  rites  to  b«  flsed  anmuiUy  and  posted 86 


INDEX  373 

Regulation  of  vAtem —^  Continued.  page 

States,  power  of  — 

As  to  transportation  from  and  into  State 181 

Between  places  in  same  State  passing  outside 179  note 

Cannot  aflFeet  interstate  traffic 179 

Discrimination   prohibited 182 

Distinction  as  to  power  to  tax 151 

Early  cases  overruled 182 

General  statute  applied  to  domestic  transportation. ...   185 
Interference  with  interstate  "proportional  tariffs ".179  note 

Interstate  long  haul  and  domestic  short  haul 185 

Joint  through  domestic  rates 184 

Local  business  done  by  federal  railroad 180 

Of  domestic  transportation. . .' 179 

Of  express  companies 179  note 

Of  railroad  within  State  limits 92 

On  long  and  short  hauls 185 

Prescribing    different    classification    from    that    estab- 
lished     180  note 

Regulating  domestic  part  of  interstate  rate 180 

Requiring  rates  to  be  fixed  annually  and  posted 186 

Right  to  apportion  among  several  railroads 184 

Telephone  rentals    189   note 

Hejiovated  bntter  — 

See  BuTTEB. 

Riparian  rights  — 

Compensation  for  logs  drifted  on  shore 203  note 

Of  access  to  navigable  waters 201  note 

Rnles  by  which  commerce  governed  — 

As  applied  to  sales  by  manufacturers 116 

Collisions,   for   prevention   of 219 

Congress  may  prescribe 42 

Free   competition    42 

Rules  of  navigation 42 

Rules  of  decision  — 

See  Common  Law,  Application  of  Fbincxpijes  of. 

Common  law,  principles  and  definitions 15 

Modifications  of  general  jurisprudence  by  State  constitution 

or  statute 16 

State  decisions  on  questions  of  general  jurisprudence 16 

State  laws  applicable  to  liability  for  marine  torts 221 

State  laws  as 16 

Rules  of  evidence  — 

See  Evidence. 


374  INDEX 

Rules  of  liability—  PAGE 

Application  to  persons  engaged  in  interstate  commerce 93 

By  State,  in  aid  of  federal  policy 94 

iState  quarantine  regulations 104 

Sale  of  tiokets  — 

Prohibiting  ticket  brokerage  or  scalping 171 

Regulating  stop-over  privileges ; . . .   172 

Sale,  purchase,  and  exchange  of  commodities  — 

Agents,   interstate  sales  by 121 

As  element  of  conunerce 20 

Cigarettes  134,  135 

C.  O.  D.  .shipments,  status  of 129-131 

Congress,  power  of  — 

Interstate  sales  within  exclusive  power  of  Congress...   118 

Stockyards    141 

Exclusive  power  of  Congress  respecting 58 

Intoxicating   liquors    131-133 

Local  federal  police  regulations 119 

Prohibiting  sale  of  perishable  articles  at  certain  places . .  120  note 

Shipment  of  goods  upon  telegraph  order 120  note 

States,  power  of  — 

Cigarettes,  prohibiting  sales  in  original  packages 135 

Coffee,  exclusion  of,  when  artificially  colored 139 

General  prohibitory  law  limited  by  construction 120 

Intoxicating    liquors,    manufactured    in,    sent   out    of, 

shipped  back  to,  State 133  note 

Intoxicating  liquors,  prohibiting  sale  of  imported 132 

Intoxicating  liquors,  prohibiting  transportation  of ... .   132 

Intrastate  sales  within  exclusive  power  of  State 118 

Newly  discovered  article  of  food,  prohibiting  introduc- 
tion of    136 

Oleomargarine    135 

Oleomargarine,  requiring  to  be  colored  pink 137 

Oleomargarine,  to  exclude  artificially  colored 137 

Prohibiting   delivery   of   goods    purchased    in    another 

State    120  note 

Prohibiting  peddling  goods 120 

Prohibiting    soliciting    orders    for    delivery    without 

State    120  note 

Prohibitory  law  limited  to  local  property 120 

Right  to  sample  goods  before  purchase 120  note 

Seamen  — 

Congress,  power  of 214 

Constitutional  guaranties  of  liberty,  when  not  applicable  to .  222 


INDEX  375 

Seamen  —  Continued.  paoi 

Contracts,  requiring  seamen  to  carry  out 223 

Federal  regulation  for  protection  of 222 

Harboring  and  aiding  to  desert 22J 

Seeds  — 

Exempting  farmers  from  dating  of  seed  packets 253  note 

Separability  of  interstate  and  domestic  conunerce  — 

Regulation  of  rates  and  power  of  taxation  distinguished. .  .  151 

Taxation  of  receipts 289 

Taxation  on  privilege  of  doing  local  business 295 

Separate-coacli  laur  — 

Construed  as  applying  to  domestic  commerce 168 

Held  by  State  court  applicable  to  interstate  passengers.. ..    169 

Rights  under  Fourteenth  Amendment 169  note 

State  laws    167 

Seventli  Amendment  — 

Jury,  trial  by 3ft 

Sherman  Act  •— 

See  Anti-Trust  Law. 
Ships  and  shipping  — 

See  Inspection  and  Licensing  of  Vessels;  Limita- 
tion OF  Vessel  Owners'   Liability;    Recordino 
Acts;  Seamen. 
Congress,  power  of  — 

Over  vessels  and  crews 214 

Display  of  lights  while  at  anchor  in  harbor 204 

Engineers,  rules  for  qualification  and  licensing  of 219 

Fire,  precautions  against 220 

Gaugers  of  coal  boats,  appointment  of 99 

Improvements    patented    in    this    country,    use   by    foreign 

vessels    214 

Liens  for  supplies  or  labor.  State  statutory 221 

Marine  torts,  State  laws  applicable  to 221 

Passengers,  limiting  number  of 220 

Places  for  landing  at  wharves 206 

Regulating  place  of  anchorage 204  note 

Relation  of  regulations  to  admiralty  jurisdiction 219 

Rules  of  highway 219 

Rule  to  determine  capacity 100 

State  police  regulations 215 

State  regulations  while  in  harbor 20S 

State  taxation  — 

Dredges    281  - 

Gross  receipts,  see  Gross  Receipts,  Taxatioic  of. 

Of  money  or  capital  invested  in  shipping 279  note- 


376  INDBX 

Skips  and  shipping  —  Continued.  PAOS 

State  taxation  —  Continued. 

Of  vessels  as  property,  as  duty  of  tonnage 270 

On  agency  maintained  within  State 298 

On  privilege  of  navigating  navigable  streams 296 

Ship  as  personal  property 279 

Situs,  actual    281 

Situs,  artificial    280 

Survey  of  hatches 204 

Sbmbs  — 

Exempting     from     conditions    of     sale    when    grown     in 

State   253  note 

Situs  — 

Of  vessel,  actual 281 

Of  vessel,  artificial 280 

Siztli  Amendment  — 

Aliens,  application  to 240 

Sleeping-car  companies  — 

State  taxation  — 

Application  of  unit  rule 282 

Of  rolling  stock  and  other  movable  property 277 

On  privilege  of  doing  local  business 295 

Privilege  and  occupation  taxes 294 

Unit  rule,  mode  of  ascertaining  value 283 

Social  evils  — 

Precautionary  measures  by  States  against 241 

State  police  power,  under 84 

Sonth  Carolina  Dispensary  Lax^  — 

Discrimination  by  action  of  State  officers 254 

Wilson  Act,  operation  under 145 

Sovereign  powers  — 

No  abeyance  without  constitutional  limitation 48 

Sovereignty  — 

Rests  in  the  people 80 

Speed  of  trains  — 

Regulating 163 

State  Dispensary  Law  — 

See  South  Cabolina  Dispensabt  Law. 

State  laws  as  rules  of  decision  — 

S^e  Rules  OF  Decision. 
State  polico  pov  -ir  — 

See  PoucE  Poweb. 


iwDBx  377i 

states,  exclusive  power  of—  PACKS 

Domestic  commerce    •»... •*....     75 

Instruments  of  commerce  wholly  within  jurisdiction 75 

States,  general  power  of — 

See  under  diflFerent  subjects  of  regulation  and  generally 
throughout  this  index;  Police  Poweb. 

Classification  of  national  and  State  powers 65 

Domestic  commerce 75 

Domestic  instruments  of  commerce  employed  in  interstate 

commerce  75 

Exercise  construed  as  aid  to  commerce 77 

Local  matters  as  to 57 

Local  regulations  which  are  incidental  obstructions 77 

Powers  not  granted  to  national  government  and  not  pro- 
hibited         56 

To  meet  varying  circumstances  of  different  localities 76 

Statutory  definition  of  commerce,  weight  given  to-* 

See  Definition  of  Commerce. 
Stock  yards  •— 

Business  carried  on  by  members  of  exchange.... 141 

Combination  of  meat  dealers ••• 141 

Stoppage  of  trains— ^ 

See  Trains. 
Snnday  laws— 

Freight  trains,  prohibiting  running  of • . . . .     84 

Incidental  interference  with  commerce 93 

Transportation  of  freight 171 

Taxation  — 

See  under  the  different  subjects  of  regulation;  DuBA- 
TiON  of  Federal  Protection. 

Concurrent  federal  and  State  powers 56 

Tea  — 

Prohibiting  importation  of  certain  kinds 49  note 

Telegraph  — 

Authorized  to  construct  lines  over  post  roads 190 

Communications  as  commerce 188 

Diligence  in  transmission  and  delivery  of  messages 87 

Establishing  on  railroad  by  eminent  domain 63  note 

Exclusive  franchise,  grant  by  State  of 191 

Foreign  corporations  subject  to  State  police  power 251 

Gambling  operations   prohibited 191  note 

Invalidating  stipulation  in  contract  requiring  certain  notice 

of  claim   191  note 

Penalizing  negligence  within  State 193 

Poles  and  wires,  regulating  erection  of 87. 


378  INDEX 

Telesraph  —  Continued.  pagb 

Kegulating  buildings,  poles,  and  wires 191 

Regulating  delivery  of  messages  in  other  States 192 

Regulating  order  of  transmission 193 

Requiring  offices  to  be  established  at  places  designated  by 

State  commission  191  note 

Requiring  prompt  delivery  of  messages  within  State 192 

Requiring  removal  of  poles  and  wires  to  another  State 192 

Requiring  wires  and  cables  to  be  placed  under  ground 192 

State  regulation  of  local  matters 191 

State  taxation  — 

Application  of  unit  rule 282 

Charge  on  poles  and  wires  for  use  of  streets 301 

Gross  receipts,  see  Geoss  Receipts,  Taxation  of. 

Injunction  to  restrain  business  until  tax  is  paid 279  note 

License  tax  as  condition  to  doing  business  in  State ....  300 

Mode  of  estimating  value  of  property 278 

Of  corporate  franchise 313 

On  messages    300 

On  privilege  of  doing  domestic  business 300 

Privilege  and  occupation  taxes 294 

Reasonable  fee  for  supervision  of  poles  and  wire 302 

Unit  rule,  effect  of  Act  of  Congress   authorizing  oc- 
cupancy of  post  roads 284 

Unit  rule,  mode  of  ascertaining  value 283 

Teleplione  — 

As  instrument  of  commerce 189 

Federal  control  of  telephone  companies 189 

Grant  of  exclusive  right  to  operate  telephone  lines 189  note 

Prohibiting  discrimination  between  patrons 189  note 

Temporary  detention  in  transit  — 

Goods  under  federal  protection 155 

Territories  — 

Constitution  applicable  to,  when 12 

Not  States  within  judicial  clause  of  Constitution 11 

Not  States  within  meaning  of  statutes 11 

Power  of  Congress  over,  as  incident  of  sovereignty 10 

Power  of  Congress  to  make  rules  and  regulations  respecting .  10 

State  as  word  is  used  in  treaties 12 

State  regulation  of  rates  on  goods  passing  through 13 

Tieket  soalping  — 

See  Railboads. 

Trade  marks  — 

As  subject  of  commerce 128 

Original  trade  mark  act  held  invalid 127 


i2n)Ex  379 

Traima  —  page 

Heating  of  passenger  cars • 85,  165 

Regulating  speed  of 92,  163 

Requiring  fast  train  to  turn  aside  from  direct  route 165 

Stoppage  at  county  seats 166 

Stoppage  at  towns  over  certain  size 166 

Stoppage  of,  at  certain  stations 95 

Stoppage  of,  regulating 86 

Transportation  between  places  in  same  State  — 

Distinction  between  power  to  tax  and  to  regulate  rates. .  . .  150 

Inspection  and  licensing  of  vessels 216 

Navigating  high   seas 149 

Navigating  on  boundary  river 151 

Regulating  rate  when  part  of  route  is  outside  State 179  note 

When  part  of  route  is  outside  State 149 

Transportation  of  persons  and  property  — 

See  Duration  of  Federal  Protection;  Regulation  of 
Rates. 

Afl  constituting  commerce 147 

As  element  of  commerce 20 

Between  points  in  same  State  when  part  of  route  outside . .   149 

Congress,  paramount  power  of 148 

Denial  by  Congress  of  transportation  facilities  as  to  certain 

goods    115 

Exclusive  power  of  Congress  respecting 58 

Natural   gas,   prohibiting  use   of   pressure  in  transporta- . . 

tion    148  note 

State  taxation  — 

Franchise  tax  on  separate  local  independent  service . . .  295 

On  privilege  of  engaging  in 294 

Transportation  from  and  into  State 181 

Within  exclusive  power  of  Congress 88 

Trees  — 

Exempting    from    conditions    of     sale    when    grown    in 

State   253  note 

Trial  by  jnry  — 

Necessity  to  preserve  in  defining  jurisdiction  at  law  and  in 

equity  30 

Tnslioats  — 

Inspection  and  licensing  of 216 

Vmliorm  system  of  regnlating  commerce — 

Need  for,  as  cause  of  adoption  of  Constitution 3 


380  usaam. 

Vniit  mle  of  taxation—  paob 

Application  of,  see  Express  Companies;  Rausoads; 
Sleeping-cab   Companies;    Telegbaph. 

Exceptional  cases  of  valuable  terminal  facilities 286 

Mode  of  ascertaining  value 282 

Valuation  as  unit  defined 285 

tTines  — 

Exempting     from    conditions    of     sale    when    grown     in 

State    253  note 

Warehouses  and  elevators  — 

License  tax  on  owners  of 310 

Subject  to  local  regulations 232 

When  nondomestic  transactions  not  subject  to  State  laws . .  233 

Wl&arf  ase  — 

Discrimination 207 

Discrimination  in,  for  using  municipal  wharves 259 

Duty  of  tonnage 272 

Municipal  wharfage  as  duty  of  tonnage 273 

Must  be  reasonable 206 

Not  imposts  or  duties  on  imports  or  exports 206  note 

When  governed  by  local  laws 206 

iWliaxT«s,  piers,  and  docks— 
See  Wharfage. 

Below  low- water  mark,  regulation  authorized  by  State 206 

Construction,  States  may  authorize 205 

Defining  lines  of  navigability 206 

Designating  place  for  landing  of  vessels 206 

Federal   regulations   paramount 205 

Right  of  State  to  authorize  construction  of  wharf  in  do- 
mestic waters    198 

Risk  of  congressional  interference  assumed 206 

States  may  regulate  use 205 

Wheeling  Bridge  cases  — 

Discussed 224 

Wilson  Aot  — 

Action  on  contract  for  liquors  denied  by  State  law 147  note 

C.  O.  D.  shipments,  status  of 129 

Discrimination  by  act  of  State  officer 255 

Illustrating  exercise  of  combined  federal  and  State  powers. .  54 

Individual  consumption,  right  to  import  for 146 

Judicial  review  of  cases  under 144 

Making  importations  subject  to  State  laws 143-147 

Not  applicable  to  liquor  while  in  transit 145 

Power  of  State  to  prohibit  soliciting  of  orders. 1.47  note 

Scope  of  statute; 144 

South  Carolina  Dispensary  Law,  operation  of 145 

State  inspection  law 146 

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